RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            31 January 2006
      DOCKET NUMBER:   AR20040010322


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Terry L. Placek               |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Ms. John G. Heck                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records be corrected to
show his application for conscientious objector (CO) status 1-0 was
approved and that he be discharged from the Army.

2.  The applicant states the denial of his request by Headquarters,
Department of the Army (HQDA) was strongly influenced by the unfounded
views and inappropriate actions of his command rather than an honest
appraisal of whether his CO claim met the guidelines of Army Regulation 600-
43.  Seven officers who knew him at a personal level, as well as two
chaplains who interviewed him, substantiated his sincerity and wrote
letters of support.  Furthermore, the investigating officer (IO) assigned
to investigate his claim, after a tape-recorded hearing, contact with
individuals who personally knew him, and a thorough background check, also
supported his claim that he should be separated from the military [as a
CO].

3.  The applicant states that, when his packet reached the level of the
Dental Activity Command (DENTAC), the Hospital command, and the
Installation command, recommendations were given opposite to what all of
the evidence pointed toward.  The recommendations given by the commands
were not based on any criteria provided by Army Regulation 600-43 and
included information that was simply historically inaccurate.  His counsel,
Captain G___, noted that the recommendations were "legally insufficient."

4.  Moreover, the applicant states numerous violations of the regulation
occurred throughout the processing of his packet including 1) unfair
command influence; 2) violation of the 90-day deadline for processing
without adequate reason; 3) withholding or removing documents from the
original packet; 4) addition of adverse material that was historically
inaccurate; 5) failure of the SJA to perform a legal review at the time
instructed by regulation; 6) addition of a surrebuttal and substantive
comments by the SJA after his final rebuttal; 7) denial of his CO claim
based on speculation and circumstantial points; and 8) failure to
differentiate between 1-0 status and 1-A-0 status.

5.  The applicant states that the decision process at HQDA involved three
individuals -- one individual who ruled in his favor, one who did not, and
Colonel B___, who made the final decision [to disapprove his request].
Colonel B___ wrote, in part, "The evidence proves the applicant's
dissatisfaction with his obligations as a military dentist compared to his
idealized life as a dentist, but does not attain the standards of
conscientious objection to participation in warfare in any form…"  The
applicant states that one must ask then, "What does attain the standards of
conscientious objection to participation in warfare in any form?"  If it
was not his discussions of objecting to war with fellow officers, his
refusal to associate with military personnel outside of work, his disgust
at participation in military operations and training, and his open
proclamation that he objects to participation of any kind of war in any
form, then what does attain the standards of conscientious objection?

6.  The applicant asks the Board to take a more balanced and fair approach
at evaluating his status as a CO.  He requests the Board evaluate the
evidence in its entirety and provide a decision that upholds his claim as a
CO or at  least acknowledge that the processing of his CO claim was not in
accordance with Army Regulation 600-43 and that his claim should be
reprocessed under a neutral command.

7.  The applicant provides a separate memorandum, dated 20 October 2004,
outlining how the processing of his CO request violated Army Regulation 600-
43, and his CO packet.

CONSIDERATION OF EVIDENCE:

1.  On 2 February 1998, the applicant signed a USAREC Form 1131-R-E
(Department of the Army Service Agreement F. Edward Hebert Armed Forces
Health Professions Scholarship Program (AFHPSP)).  He was accepted into a
program leading to a degree in general dentistry.  Paragraph 21 stated he
agreed to reimburse the Government for the total costs which it incurred,
plus interest, or any portion thereof, as determined by the Secretary of
the Army, if he voluntarily or because of misconduct failed to complete his
active duty obligation under this contract.  He acknowledged and agreed the
term "voluntarily" included failure due to conscientious objection.
Paragraph 23 stated he understood he would serve 4 years on extended active
duty and 4 years in the Individual Ready Reserve in return for his 4-year
AFHPSP scholarship.

2.  On 2 February 1998, the applicant took his oath of office as a second
lieutenant in the U. S. Army Reserve.

3.  On 24 May 2002, the applicant was awarded his Doctor of Dental Surgery
degree.  In July 2002, he was ordered to active duty as a captain to
complete his 4-year obligation.  On or about 1 October 2002, the applicant
began his dentistry residency training at Fort Jackson, SC.  He completed
his residency training on or about 26 September 2003.  He was reassigned to
Fort Sam Houston, TX.

4.  On 14 October 2003, the applicant requested CO status.  He provided
seven statements in support of his application.
      The applicant's supervisor, Colonel D___, stated the applicant
approached him several times with concerns about his role in a military
organization.  The applicant had trouble divorcing his role of healer and
care provider with the activities of those for whom he provided that care.
Eventually he could no longer reconcile the fact that he provided services
that returned Soldiers to duties that could involve the taking of lives.
Colonel D___ stated he questioned the applicant very carefully about the
motivations for his objections.  The applicant's answers convinced him very
definitely that his objections were purely on moral grounds and not held
for any political reasons or that he was in any way disloyal to his
country.


      The applicant's brother, a captain in the Army, stated he
wholeheartedly supported the applicant's accepting an Army scholarship to
finance his degree in dentistry.  When the applicant expressed his anxiety
and tension about the use of military force to solve problems, he tried to
convince the applicant that in some cases military force had to be used.
While he disagreed with the applicant's thinking, he believed he was
sincere in his belief of nonviolence.


      Colonel C___, the program director during the applicant's residency,
stated there was no doubt in his mind the applicant was very sincere in his
religious beliefs.


      A contract chaplain who was also a retired Soldier, stated Islam
encourages a strong consciousness to serve humanity, to examine matters,
and to make decisions that are in keeping with the principle of neither
harming others nor reciprocating harm.  Often the applicant expressed to
him how happy he was to serve in the military and take care of patients in
need of dental treatment.  Unfortunately, in recent months the applicant
appeared to be somewhat disturbed about the attitude of disregard some
Soldiers possessed in reference to the value of human life and that the
observation posed a direct conflict with his religious values and personal
convictions of life.


      A fellow Army captain stated he believed the applicant was truly
humble, sincere, and spoke of Islam as only Allah would have him.  The
applicant was instrumental in helping to establish Islamic worship services
on post at Fort Jackson, SC.  He had no doubt the applicant's request for
CO status was sincere and not for his own benefit.  It was also not simply
because the applicant did not want to participate in any of the conflicts
in which the military was currently involved.  He was truly a peaceful
person and did not believe in war.


      A fellow Army captain who attended the same residency program as the
applicant stated the applicant had always been a very peace-loving person.
The applicant felt like he was going against the teachings of his Lord.  He
might not be out in the front lines firing a weapon but as an Army dentist
he was contributing to warfare nonetheless.  The applicant loved his
nation, but through his religious studies and military experiences he
realized that there were other ways he could serve his nation.  He stated
the applicant's reflection, study, and guidance from God led him to
sincerely believe that he needed to be objecting to his current status as
an Army Soldier/captain/dentist.

      A Fort Jackson, SC battalion chaplain stated the applicant's growth
in his religious practice had brought him to realize that life is for
growth, not destruction of growth.  The applicant was "in internal strife
because of the everyday focus on war and killing of his and our fellow
Muslim brethren.  He believes this hinders him and contradicts the
teachings he would like to relay to his family and community."  The
chaplain believed the applicant was sincere in his commitment and
recommended he be released from the Army as soon as possible.

5.  On 20 February 2004, a hearing was held concerning the applicant's
request for 1-0 CO status.  The applicant testified he objected to all
forms of war and killing of human beings.  As a health care provider, he
had been trained to heal and nurture people.  Therefore, he found it an
inconceivable notion that he was personally involved in any war or killing
and it was against his beliefs to support and aid people who were involved
in war and killing.  He testified, in effect, one Hadith (the sayings,
doings, and situations of the Prophet Muhammad) is – "The merciful people,
God The Most Merciful, has mercy upon them.  So be merciful to him
whomsoever is on the earth, and He who is in the Heavens will shower you
with mercy."  He stated, said another way, if you want God's mercy, then
you must be merciful.  Do not harm people and in return God will help you
when you need Him.  The applicant testified he realized there are some
Muslims who do not have the same understanding that he has, but similarly
one could argue the level of understanding or beliefs among Christians and
Jews varies.

6.  The applicant testified that when he was 19 years old he had a strong
interest in attending dental school.  His desire was to take care of people
who needed him to treat their unaesthetic smile and, because of that, he
would change their self-esteem and their life as a whole.  The applicant
further testified he would help people in agonizing pain from a rotten
tooth.  The obstacle was how to pay for dental school.  His father
recommended he join the Army.  The applicant thought he knew the Army way
of life, his father having been a career Soldier.  So he joined.  At the
time, he did not object to war or involvement with the military.

7.  The applicant testified that his beliefs and feelings changed gradually
and became concrete in the spring of 2003.  In early April 2003, he
attended the Combat Casualty Care Course (C4), a course where hundreds of
health care practitioners gather to master their profession in a
deployment/outdoor setting.  A video was shown, described by the class
instructor as a "motivational" video, which showed bombs dropping, people
running for their lives, and all the while the music in the background was
some form of heavy metal music where the singer kept screaming, "Die, Die,
Die, Die…"  He was shocked to see that morally repugnant video.  He never
pictured himself being in a situation where he was expected to be
"motivated" upon seeing death and destruction.

8.  The applicant testified that, around early May 2003, he was treating a
class-3 nondeployable Soldier for a routine extraction.  After
commiserating with the Soldier on his deployment and separation from his
family, the Soldier told him he did not mind deploying, he wanted to kill
people.  The applicant testified that he thought to himself, what had he
gotten himself into?  He was working for an organization whose goal, for
all practical purposes, was to kill.  After a great deal of thought and
discussions with colleagues and peers, he finally decided in the spring of
2003 the only correct thing for him to do was to seek separation.

9.  The applicant testified that more and more he found it difficult to
spend time with colleagues and fellow officers who were content with their
role and position in the Army.  He felt so strongly about his beliefs that
he discussed his objections with his residency director and his operative
mentor.  In addition, despite being assigned to Fort Sam Houston, often
described as a plum or great assignment, his feelings and beliefs have
remained.

10.  The applicant testified that he felt like a hypocrite.  He was a
person who was supposed to help people and care for them, whereas he ended
up harming them.  Assuming his CO status was approved, he would consider
working in a hospital environment or for the Public Health Service, where
he would be able to treat a disadvantaged population which could truly
benefit from his health care training.

11.  The applicant testified that he graduated from dental school on 24 May
2002. He applied for the residency during the fall or spring of his senior
year.  He testified that he really did not know anything about World War
II.  World War II was something they might have studied in school.  He
really did not remember the first Gulf War as he was a kid then.

12.  On 25 February 2004, Major S___, the Health Care Administration
resident, Brooke Army Medical Center, recommended approval of the
applicant's request for CO status.  He believed the applicant had a firm,
fixed, and sincere objection to participating in war in any form because of
religious training and belief.  Major S___ stated that statements from his
supervisors, mother, brother, religious leaders, co-workers, and the Brooke
Army Medical Center chaplain supported that he was sincere in his beliefs.
Major S___ did not believe the applicant's request was delayed to complete
residency training or initiated to circumvent his active duty service
obligation.  The first discussions with his supervisors concerning CO
status took place around October or November 2002.

13.  On 9 March 2004, the Commander, Brooke Army Medical Center, Brigadier
General (BG) F___, in a short memorandum to the Commander, Army Medical
Department Center and School and Fort Sam Houston, recommended approval of
the applicant's request to be classified as a 1-0 CO and he be discharged.

14.  On an unknown date, the applicant's Dental Activity Commander, Colonel
A___, recommended disapproval of the applicant's request for CO status.  He
stated the applicant was a very intelligent individual who knew what he was
getting into when he applied for and accepted an Army scholarship.  He had
active duty service during dental school and had a first-hand opportunity
to see his future as a Dental Corps officer.  There was no documentation
from his parents supporting his CO status.  He would never be asked to
assume an offensive combat position.

15.  On 12 July 2004, BG F___ changed his recommendation and recommended
denial of the applicant's request for CO status.  He believed the applicant
had not demonstrated by clear and convincing evidence how his role as an
Army dentist was in conflict with his strongly held religious beliefs
since, as a health care provider, he was a non-combatant.

16.  On 21 July 2004, Colonel L___, the Staff Judge Advocate (SJA) of the
U. S. Army Medical Department Center and School and Fort Sam Houston,
provided the applicant's CO packet to the Commanding General, Army Medical
Department Center and School and Fort Sam Houston to obtain the Commanding
General's recommendation with a brief discussion.  The discussion contained
a factual error, noting the applicant had attended ROTC (Reserve Officers'
Training Corps) when he was actually commissioned through the AFHPSP, not
ROTC.  Colonel L___ recommended denial of the applicant's request.

17.  On 21 July 2004, the Commander, U. S. Army Medical Center and School
and Fort Sam Houston, BG P___, recommended denial of the applicant's
request for CO status.  He believed the applicant was not sincere because,
due to his father's military service, he should have been familiar with the
role of the Army as a fighting force.  He stated he was unconvinced the
applicant's religious beliefs changed, that his reasoning merely explained
how his perception of the Army changed.  He stated the applicant had
trained with the Army while attending dental school and so he had been
exposed to military service before entering active duty.  He stated the
applicant did not submit his packet until he had completed training.  He
stated the CO packet was delayed because it had not been forwarded to him
(BG P___) until after the 90-day deadline and further delay occurred while
correcting deficiencies in the packet.

18.  On 15 July 2004, the applicant's parents provided a letter of support
for his request for CO status.  His mother noted she had told the IO the
applicant was a very different child, very quiet with never a temper
tantrum.  As he grew older, he became more religious.  She stated his
reason for becoming a CO was because of his faith, religion, and nature.

19.  On 4 August 2004, counsel for the applicant concluded that the
recommendations of the applicant's chain of command were legally
insufficient.  His reasons for his conclusion are detailed in the
applicant's 5 August 2004 rebuttal to those recommendations.

20.  On 5 August 2004, the applicant provided a rebuttal to his command's
recommendations concerning his request for CO status and discharge.  He
stated numerous inaccuracies were used as justification for disapproval of
his CO application:

      The recommendations noted he trained with the Army while attending
dental school, so his training upon active duty was not the first time he
was exposed directly to military service.  The applicant rebutted that he
did not serve his required 45 days active duty for training at a military
installation.  He was permitted to, and did, serve his training at the
civilian institution he was attending.

      The recommendations noted, as a college graduate whose father served
20 years on active duty, he was undoubtedly familiar with the role of the
Army as a fighting force.  The applicant rebutted that his father served as
an enlisted pharmacy technician in hospitals and was never involved in any
type of military conflict.  Regardless, his family background was invalid
because it did not change the reality and time of his beliefs.  His belief
he could not be directly or indirectly involved in any type of war or
killing became fixed in the spring of 2003. That was when he personally
experienced a side of the military he had not experienced before.
Conversing with military personnel about war and watching the video during
the C4 course were all events that he found revolting and extremely
inhumane.  He turned more and more toward his religion and came to realize
that he was a different person from the individual who signed the military
contract five years earlier.

      The recommendations noted an absence of documentation from his
parents supporting his CO status.  The applicant rebutted that the packet
contained a memorandum from the IO clearly detailing an interview with his
mother.

      The recommendations noted he was currently serving in a garrison
environment and, as a medical officer, would never be asked to assume an
offensive combat position.  The applicant rebutted that his commanders
failed to distinguish between 1-0 and 1-A-0 status.  He understood he was a
noncombatant.  However, his beliefs were now prohibiting him from being
affiliated with a military organization.  He believed he was indirectly
involved in killing and harming human beings because he was providing
dental treatment for Soldiers whose full-time duties were to kill others.
The regulation clearly applies to all Soldiers, not merely combatants.  The
1-0 designation accommodates an individual who recognizes, due to his firm
convictions, that noncombatant status is insufficient to rectify the
difference between his beliefs and the military and therefore he must be
separated.

      The recommendations indicated the timing of his request for CO status
was suspicious because he waited until well into his residency training
program to begin the process.  The applicant rebutted that part of the
impetus that convinced him that he was a CO occurred in late spring of
2003, during his residency.  Prior to attending C4, he did not fully grasp
the significance of being in the military.  When he recognized his beliefs
were firm, he inquired about the CO process.  Unfortunately, soon after
taking the initial steps he was given permanent change of station orders.
According to the regulation, he was obligated to wait until he arrived at
his new duty station to submit the request.  The IO did not believe he had
any ulterior motive (such as completing his residency training while
getting out of his active duty obligation) in making his request for 1-0
status.

21.  In his rebuttal, the applicant also noted multiple procedural errors
took place in processing his CO claim that in effect denied him due process
and led to an unfavorable disposition.

22.  On 10 August 2004, Captain G___ provided comments regarding the
applicant's CO application in a memorandum for HQDA.  Captain G___ found
the recommendations of the DENTAC commander, the Brooke Army Medical Center
commander, and the general court-martial convening authority (GCMCA) to be
legally insufficient.  He stated the command did not distinguish 1-0 status
from   1-A-0 status and based their recommendations, in part, on the
applicant's non-combatant status.  He stated the command relied heavily on
the assumption the applicant had been previously exposed to military life
and understood the role of the Army; however, those assumptions were based
on speculation or a misstatement of fact.  He stated the command made other
conclusions that were based on speculation and contradicted the evidence
presented by the IO.  He noted several procedural errors that occurred
during the processing of the applicant's request.

23.  On 20 August 2004, Colonel L___, the Staff Judge Advocate (SJA) of the
  U. S. Army Medical Department Center and School and Fort Sam Houston,
provided a review of the applicant's CO request for sufficiency in law and
fact for HQDA.  Colonel L___ responded to several points in the applicant's
rebuttal regarding alleged violations of his procedural rights and noted,
in detail, that none of the points raised revealed any abrogation of his
rights.

24.  Colonel L___ recommended disapproval of the applicant's request.  He
noted, in part, that when the applicant described two incidents that he
stated served as the impetus for his beliefs as a CO, his description of
the incidents only revealed how his view of the military (emphasis in the
original) changed, not how his beliefs (emphasis in the original) changed.
Colonel L___ noted that, in the hearing regarding his application, the
applicant failed to offer a concrete explanation of how his beliefs
changed, instead noting that he was continually more active in Islam.  Due
to the dearth of evidence on how his religious (emphasis added) beliefs
changed, Colonel L___ did not believe the applicant met the fairly high
legal standard of clear and convincing evidence.

25.  In an undated memorandum to the GCMCA, Colonel L___ advised the GCMCA
on the legal and procedural requirements for processing CO applications. He
noted in part that the applicant need not demonstrate that his beliefs were
"religious" in the traditional sense in order to qualify as a CO.  Purely
moral or ethical considerations were sufficient, as long as those beliefs
were sincerely held and were central to his life.  The objection must be
based on religious, moral or ethical beliefs; the applicant must object to
war in any form, not merely a particular war; and the objection must be
sincere.  Colonel L___ did not make a recommendation.

26.  On 14 September 2004, Captain G___ requested exclusion of the SJA's
  20 August 2004 memorandum from the applicant's CO packet because it was a
surrebuttal and was more commentary and argument than a legal review.

27.  On 22 September 2004, the DA Conscientious Objector Review Board
(DACORB) determined the applicant did not present convincing evidence, in
accordance with Army Regulation 600-43, that his stated beliefs warranted
award
of 1-0 status.  The DACORB noted in part that the evidence did not show a
crystalization of religious beliefs to CO status as he contended, but
rather indicated a crystallization of his chosen profession as it relates
to his current position in life as a military dentist.  The DACORB stated
the evidence proves the applicant's dissatisfaction with his obligations as
a military dentist compared to his idealized life as a dentist but does not
attain the standards of conscientious objection to participation in warfare
in any form.

28.  Army Regulation 600-43 (Conscientious Objection) sets forth the
policy, criteria, responsibilities, and procedures to classify and dispose
of military personnel who claim conscientious objection to participation in
war in any form or to the bearing of arms.

29.  Army Regulation 600-43, paragraph 1-7a(1) states requests by personnel
for qualification as a CO after entering military service will not be
favorably considered when these requests are based on a claim of
conscientious objection that existed and satisfied the requirements for
classification as a CO according to section 6(j) of the Military Selective
Service Act and other provisions of law when such a claim was not presented
before dispatch of the notice of induction, enlistment, or appointment.
Claims based on conscientious objection growing out of experiences before
entering military service; however, which did not become fixed until after
the person's entry into the service, will be considered.

30.  Army Regulation 600-43 states the most important consideration in
determining if an individual qualifies as a CO is whether the individual's
asserted convictions are sincerely held.  Requests after entering military
service will not be favorably considered when these requests are based
solely upon policy, pragmatism or expediency, based on objection to a
certain war, based upon insincerity, or based upon certain other criteria.
The timing of an application alone is never enough to furnish a basis in
fact to support a disapproval but may serve merely as indicators that
further inquiry as to the person's sincerity is warranted.  The burden of
establishing a claim of conscientious objection as grounds for separation
or assignment to noncombatant training and service is on the applicant.

31.  Army Regulation 600-43 states applications from personnel in Active
Army units will be processed and forwarded to HQDA within 90 days from the
date submitted.  Extraordinary circumstances may lengthen this period.  If
the processing time of an application exceeds 90 days, the GCMCA will state
the reasons for the delay and add these reasons as an enclosure to the
record.

32.  Army Regulation 600-43 states an applicant may submit second and later
formal applications to his or her unit commander only if they are not based
upon substantially the same grounds or they are not supported by
substantially the same evidence as a previously disapproved application.
The GCMCA SJA will review the application to determine whether it is
substantially the same as a previous application disapproved by HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant asks the Board to take a more balanced and fair approach
at evaluating his status as a CO.  He asks the Board to evaluate the
evidence in its entirety and provide a decision that upholds his claim as a
CO or at least acknowledge that the processing of his CO claim was not in
accordance with Army Regulation 600-43.  The Board will evaluate the
evidence in its entirety as the "neutral command" requested by the
applicant.

2.  The Board notes some of the recommendations made by the applicant's
commanders discussed issues that were not fully addressed at his hearing
(e.g., that he knew what he was getting into when he applied for and
accepted an Army scholarship).  The recommendations mentioned erroneous
information (e.g., that he had active duty service during dental school and
had a first-hand opportunity to see his future as a Dental Corps officer).
The SJA's 21 July 2004 discussion contained erroneous information (that the
applicant had attended ROTC).  The recommendations appeared to equate CO 1-
0 status (discharge because of an objection to all war) with CO 1-A-O
status (a willingness to remain in the Army in a non-combatant status).

3.  The delay in processing the applicant's request for CO status may have
postponed the decision in his case but the Board does not believe it had an
effect on HQDA's review of the overall evidence and final decision.

4.  It is noted the applicant's CO request raised issues that were not
addressed by the IO and were not adequately discussed during his hearing or
in the evidence he presented with his CO application.

5.  The applicant contended that he really did not remember the first Gulf
War because he was a kid at the time, that he did not know anything about
World War II, and that his father's military career did not prepare him for
the realities of the Army.  However, neither the IO nor the board members
at his hearing asked the applicant to explain how he could not have known
about the invasion of Afghanistan in October 2001.  At the time of the
Afghanistan invasion, he had been in dental school, school paid for by the
Army, since February 1998.  He testified at his hearing he applied for
residency training in the fall (2001) or spring (2002) of his senior year,
during the time of or shortly after the invasion.

6.  Army Regulation 600-43 requires that an individual applying for CO
status be sincere in basing his or her objection to all war and not just to
a certain war.

7.  The Board notes that many of the letters of support provided by the
applicant with his request for CO status expressed the belief of those
individuals that they had no doubt the applicant's request for CO status
was sincere and not because he did not want to participate in any of the
conflicts in which the military was currently involved.  There was one
letter of support, however, from the Fort Jackson, SC battalion chaplain,
which stated, in part, that the applicant was "in internal strife because
of the everyday focus on war and killing of his and our fellow Muslim
brethren."

8.  The above noted sentence was only one isolated phrase out of the many
other letters of support and indeed out of two paragraphs provided by the
Fort Jackson, SC battalion chaplain.  Nevertheless, it still raised a
legitimate question as to the applicant's conscientious objection to
participation in warfare in any form that should have been raised and
answered by the IO's investigation or by the hearing board.

9.  It appears the applicant's command based their recommendations on
grounds not provided for in the regulation.  It appears two legitimate
issues were raised, but failed to be followed up by the IO or the hearing
board, concerning the applicant's meeting of the burden of proof.  It
appears the DACORB considered the applicant's entire application and
determined he did not attain the standards of conscientious objection to
participation in warfare in any form.

10.  By the very nature of the subject and proof required (primarily,
whether the individual's asserted convictions are sincerely held), a
conscientious objector determination is problematic because there is rarely
a "cut and dried" answer.

11.  There is no evidence to show Headquarters, Department of the Army was
unduly influenced by his command's recommendations.  The Board does not
intend to cast any aspersions on the judgment of the DACORB in their
determination that the applicant did not meet his burden of proof.

12.  Nevertheless, and notwithstanding the two issues the Board discussed
above, the Board concludes that the preponderance of the evidence shows the
applicant did meet his burden of proof.  The preponderance of the evidence
shows the applicant was sincere in being opposed to warfare in any form and
that his conscientious objector beliefs crystallized in the Spring of 2003.
BOARD VOTE:

__tlp___  __bpi___  __jgh___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing his request for conscientious objector status 1-0 was approved and
by discharging him from the Army at his earliest convenience.




            __Terry L. Placek_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010322                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060131                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |105.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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