IN THE CASE OF:	   

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130017534 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  his general discharge be upgraded to honorable; and

	b.  his narrative reason for separation be changed. 

2.  The applicant states:

	a.  he wants to remove the conscientious objector label from his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

	b.  the Free Exercise Clause not only protects religious beliefs and expressions, it also seems to allow for violation of laws as long as that violation is made for religious reasons.  In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.

	c.  as a young man graduating from high school he entered the military to serve his country, see the world, experience new things, and obtain a college education.  Shortly after completing training he was shipped to Korea for his first duty station.

	d.  arriving in Korea was a very exciting and new experience.  He knew being in the military would change his life, but to what extent he would have never imagined.  Not long after being in Korea, he was invited to a church service by a fellow military member.  He attended the service, and had a life changing, life altering experience.  He was introduced to a very tangible God, to his Lord and Savior Jesus Christ, and during that service a very real presence of God came over him, it was like nothing he had ever encountered before in his life.  He accepted Jesus into his life that night and determined in his heart to serve and honor him from that day forth.    

	e.  after serving in Korea, he was shipped to Fort Hood where he spoke to his commanding officer and informed him of his religious beliefs, his experience in Korea, and because of his new religious belief he could no longer if called upon take someone's life.  His commanding officer tried to convince him to change his mind by implying he was a model Soldier and told the applicant he would need more time to think about the matter and research a possible resolution.  That time never came.  He began to think he was being avoided and to make matters more challenging there was chatter starting about the issues brewing in the Middle East.  He was deployed and while there he was compelled to stand his ground concerning his religious convictions.

	f.  as a citizen of the United States he has certain rights that are evident as stated in the Bill of Rights.  As a United States citizen the First Amendment speaks to the freedom of religion and expression thereof.  

3.  The applicant provides:

* DD Form 214
* Copy of First Amendment
* Copy of Free Exercise Clause
* Five character reference letters

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 29 September 1988 for a period of 4 years.  He completed his training and was awarded military occupational specialty 76Y (unit supply specialist).  He served in Korea from 
13 February 1989 to 12 February 1990.  He arrived in Southwest Asia on 
14 October 1990.

3.  Charges were preferred against him for:

* disobeying an order from an officer
* disobeying an order from a noncommisisoned officer 

4.  On 20 December 1990, he submitted a DA Form 4187 (Personnel Action) requesting classification as a "Conscientious Objector Non-combatant."  On the same date, his company commander recommended disapproval of this request.

5.  On 28 December 1990, he submitted a request for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  An investigation surrounding the applicant's conscientious objector status commenced on 5 February 1991.  On 8 February 1991, the investigating officer recommended the applicant be classified as "Conscientious Objector Non-combatant" and stated the applicant was sincere about this belief and in his opinion he met the regulatory requirement outlined in Army Regulation 600-43 (Conscientious Objection).

7.  His voluntary request for discharge for the good of the service was disapproved on 17 February 1991. 

8.  He departed Southwest Asia on 13 April 1991.

9.  On 13 June 1991, the separation authority recommended the applicant be granted conscientious objector status and he be released with a general discharge. 

10.  On 9 July 1991, the President, Department of the Army Conscientious Objector Review Board approved the applicant's application for conscientious objector status.  He directed the character of the discharge be determined by his command. 



11.  On 30 July 1991, the applicant was discharged under honorable conditions (a general discharge) under the provision of Army Regulation 600-43.  He completed 2 years, 20 months, and 2 days of creditable active service. 

12.  His DD Form 214 shows in:

* item 25 (Separation Authority) - Army Regulation 600-43
* item 26 (Separation Code) - KCM
* item 28 (Narrative Reason for Separation) - Conscientious Objector

13.  He provides five character reference letters from individuals who attest:

* he is a Christian, God fearing, and respectable
* he is organized, efficient, extremely competent, and has an excellent rapport with people of all ages
* he is a man of God, a man of unwavering faith, and a dedicated Christian
* his character has been impeccable
* he has a love for God and things of God an displays that by his desire to help out in the ministry wherever he can 

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 600-43 provides the procedures for applying for conscientious objector status.  The regulation states that military personnel who seek either discharge or assignment to noncombatant duties because of conscientious objection will submit an application on DA Form 4187.  Personnel will indicate whether they are seeking discharge or assignment to noncombatant duties.  Commanders will ensure that persons requesting conscientious objector status and discharge are advised that their refusal to perform military duty, wear the uniform or otherwise comply with lawful orders of competent military authority, will bar all their rights under the laws administered by the Department of Veterans Affairs.  The interviewing chaplain will advise the conscientious objector that any information between the applicant and the chaplain will not be privileged since a detailed report of the interview will become part of the application for consideration.

16.  Additionally, the regulation states that a person may withdraw his or her application before final action has been taken.  Headquarters, Department of the Army (Conscientious Objector Review Board), will make the final determination on all applications requesting discharge.  

17.  Paragraph 3-7a of Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD Code KCM applies to Soldiers separated under the provisions of Army Regulation 600-43 for conscientious objector.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant's record of service included serious offenses for which court-martial offenses were preferred against him, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant an honorable discharge.

4.  Evidence shows he requested classification as a conscientious objector in 1990 and he now requests his narrative reason for separation (conscientious objector) be removed from his DD Form 214.  His contentions were carefully considered.  However, his narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of discharge.  Therefore, there is an insufficient evidentiary basis for amending his narrative reason for separation on his DD Form 214.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130017534





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ABCMR Record of Proceedings (cont)                                         AR20130017534



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