IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150002672 


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 the characterization of his service be changed from entry level status to honorable.

2.  The applicant states he was unaware the characterization of his service as entry level status on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 September 1987 is not considered for civil service retirement.  He has spent all of his life working with the military either as a military member or as a civilian.  He is about to retire next year with approximately 40 years of service.  He wants to buy back his Army service time but he is unable to do so because of the characterization.  He was not discharged for any misconduct.  His previous military time served all concluded in an honorable status. 

3.  The applicant provides a copy of his DD Form 214 with a separation date of 21 September 1987.

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.  He previously completed 8 years, 6 months, and 28 days of active service in the U.S. Air Force (USAF) in an enlisted status.  His last discharge from the USAF was on 5 December 1986.  His service was characterized as honorable.

3.  On 2 April 1987, he enlisted in the Regular Army (RA) in pay grade E-4 for 
4 years.  DD Form 1966 (Record of Military Processing - Armed Forces of the United States), item 36e, states "Are you a conscientious objector (CO)?  That is, do you have, or have you ever had, a firm, fixed, and sincere objection to participation in war in any form or to the bearing of arms because of religious training or belief?"  The applicant initialed the "NO" block.  He was assigned the military occupational specialty (MOS) 51K (Plumber).

4.  On 20 May 1987, he was formally counseled by a sergeant first class for his refusal to go on his scheduled field training exercise and his refusal to draw an M16 rifle.

5.  On 27 August 1987, he was formally counseled by his first sergeant (1SG).  He reported to the 1SG on 9 June 1987 that he did not want to carry a weapon in the Army and that he felt he could not perform his Army duties because of his feeling about carrying a weapon.  The 1SG told him of his rights as a CO and he decided he wanted to stay in the Army in an MOS that would allow him to perform as a Soldier and not have to carry a weapon.  The 1SG referred him to the commander and the process for CO status was started.

6.  There is no evidence in his Military Personnel Records Jacket (MPRJ) that he formally requested CO status.

7.  On 10 September 1987, he was formally counseled by his commander for his refusal to go on his scheduled field training exercise with his class and his refusal to draw his weapon.  The commander stated she was recommending he be discharged under the provisions of chapter 11 of Army Regulation 635-200 (Enlisted Personnel Separations) due to his unwillingness to adapt himself to the military environment (bear arms and participate in a field training exercise).

8.  On 10 September 1987, his commander notified him she was initiating action to separate him from the Army prior to the expiration of his current term of service under the provisions of chapter 11 of Army Regulation 635-200.  His separation would be an uncharacterized entry level separation.  The commander provided her specific reasons for her proposed actions.  The applicant had shown a distinct inability to conform to the military environment.  His unwillingness to bear arms and to participate in field training exercises was indicative of an individual who willfully avoided completion of his military service obligation.  With this attitude, further military service would not be productive.

9.  His commander advised him he had the right to:

* consult with military legal counsel or civilian counsel (at his own expense)
* submit statements in his own behalf
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* a hearing before an administrative separation board
* waive his rights in writing

10.  On 10 September 1987, the applicant waived his rights in writing.

11.  On 10 September 1987, his commander determined he was eligible for separation under the provisions of chapter 11, Army Regulation 635-200.  The commander recommended the applicant be immediately separated from the Army.  His unwillingness to bear arms and to participate in field training exercises was indicative of an individual who willfully avoids completion of his military service obligations.  The applicant indicated that he enlisted in the Army under the impression that he did not have to bear arms due to his feelings towards weapons.  Therefore, when he was confronted with having to go to the field he refused.

12.  On 18 September 1987, the appropriate authority approved the separation of the applicant under the provisions of chapter 11 of Army Regulation 635-200 and the waiver of a rehabilitative transfer.  It was directed that the applicant be discharged from the military and that his service would be uncharacterized.  

13.  On 21 September 1987, he was discharged.  He completed 5 months and 
20 days of active service during this period that was uncharacterized.

14.  Army Regulation 600-43 (Conscientious Objection), then in effect, set forth the policy, criteria, and procedures for the classification and disposition of military personnel who claimed conscientious objection to participation in war in any form or to the bearing of arms.  All military personnel who sought either discharge or assignment to noncombatant duties by reason of conscientious objection were to submit an application.  The applicant was to indicate whether he/she was seeking a discharge or assignment to noncombatant duties on a DA Form 4187 (Personnel Action) to the immediate commanding officer.  The individual making application must have included the personal information required by Appendix A of this regulation.  This constituted a formal application.

15.  Chapter 11 of Army Regulation 635-200, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.

	a.  Separation was warranted when unsatisfactory performance or minor disciplinary infractions was evidenced by:

* inability
* lack of reasonable effort
* failure to adapt to the military environment

	b.  The policy applied to Soldiers who:

* were in an entry level status and had completed no more than 180 days of continuous active duty before the date of the initiation of separation action
* could not or would not adapt socially or emotionally to military life
* had demonstrated character and behavior characteristics not 	compatible with satisfactory continued service
* had failed to respond to counseling

	c.  Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	d.  Entry level separation - uncharacterized was used for separation under the provisions of this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was formally counseled on three occasions concerning his refusal to go on a field training exercise and to draw his weapon.  His 1SG informed him of his rights as a CO.  However, there is no evidence the applicant formally applied for CO status.

2.  His previous honorable service in the USAF is noted.  He had a break in service of 119 days from his discharge from the USAF and his enlistment in the RA.  At the time his commander notified him she was initiating action to discharge him from the service, he had completed 5 months and 9 days of continuous active service.  He was still in an entry level status at the time separation action was initiated.  Chapter 11 of Army Regulation 635-200, under which he was processed, specifically required that his service be uncharacterized.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  In view of the above, there is no basis for changing the characterization of his service.

5.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

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)                                         AR20150002672





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ABCMR Record of Proceedings (cont)                                         AR20150002672



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