IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20170008954 APPLICANT REQUESTS: the daughter of a deceased former service member (FSM), requests, in effect, an upgrade of the FSM’s blue discharge (under other than honorable conditions) to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), updated 1 October 2019 * Certificate of Death * Durable Power of Attorney * Marriage Certificate * Certificate of Birth * Letter, The Law Office of dated 20 February 2017 * Revised statement, dated 1 October 2019 * VA Administrative Decision, undated * Untitled document containing blue discharge definition * Letter, partial, dated 4 December 1945 * Letter, clemency and blue discharge, date stamped 26 March 1946 * Letter, Vic-Chairman, The Clemency Board, dated 26 February * Letter, Headquarters, Southern Branch, U.S. Disciplinary Barracks, North Camp, Camp Hood, TX, dated 11 October * National Archives (NA) Form 13038 (Certification of Military Service) FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant’s complete military service record is not available to the Board for review. A request was made of the National Personnel Records Center (NPRC) to obtain the FSM’s service record, but only portions of his reconstructed records were available. A fire destroyed approximately 18 million service members’ records at the NPRC in 1973 and the fire potentially affected his records. His case is being considered using the evidence provided and his partially reconstructed file from the NPRC. 3. The applicant states, in effect: a. The FSM’s discharge status was administratively changed in May 2016, the family requests his status be upgraded and recognized as stated on his discharge documents and given VA benefits. The applicant was told no benefits could be given to the FSM or his now deceased spouse. b. The FSM received an other than honorable discharge. When she inquired with the VA, she was told it had been changed to a dishonorable discharge. Per documents, the FSM had a very good record of responsibility, “being a diligent worker at any job.” This show his irresponsibility came only when a command was given to do something he either felt wrong to participate in because of religious beliefs or was incapable because of fear. c. The FSM entered the Army as a conscientious objector. It was his belief that war was a crime and things associated with it were a major source of the FSM’s refusal to enter the gas chamber. In the remission document, there is no mention of dishonorable discharge status and in the social worker and psychiatrist statements note the FSM was not suitable for the Army and his initial rank (classification) status was in error. 4. The FSM was inducted into the Army of the United States on 8 July 1944. 5. Evidence shows, on 1 November 1944, the FSM failed to obey a lawful order of second lieutenant C to adjust his gas mask to his face and enter the chlorine gas chamber. By summary court-martial, the applicant was sentenced to confinement at hard labor for one month and forfeiture of $25.00 per month for one month. The sentence was adjudged on 2 November 1944, and approved on 5 November 1944. 6. On 4 December 1944, the FSM was charged with a violation of the 64th Article of War. Specifically, on 2 December 1944, the FSM, having received a lawful command from his superior officer to put on his gas mask and enter the chlorine gas chamber, willfully disobeyed. 7. On 4 December 1944, the FSM received a neuropsychiatric examination at the Regional Hospital, Camp Barkeley, TX. The FSM was found to have no evidence of psychosis, had the capacity to distinguish between right and wrong, and should have been able to adhere to the right and refrain from the wrong. The FSM was found sufficiently sane to conduct or cooperate intelligently in his defense. 8. On 6 December 1944, by command of Brigadier General (BG) an officer was designated to investigate the charges filed against the FSM. 9. On 7 December 1944, the investigating officer opined that the FSM should be eliminated from the service because it was apparent that the FSM was not improved by disciplinary action or individual efforts to instruct him. He recommended the offense be charged as willful disobedience of the command of a superior officer in violation of Article of War 64. 10. After considering the investigating officer’s report and recommendations, BG recommended trial by general court-martial. 11. On 13 December 1944, at 26 years of age, the FSM was tried by a general court- martial. After being advised of his rights, the FSM elected to make an unsworn statement. He said that he could not do what a man tells him to do if it conflicts with the Lord’s will. He said he became a conscientious objector when the war started. When asked if he was willing to complete his training, he replied that that would depend on what kind of training it was. 12. He pled not guilty; however, he was found guilty of one specification of violating the 64th Article of War, by having received a lawful command from his superior officer, to put on his gas mask and enter the chlorine gas chamber, on 2 December 1944, willfully disobeyed the same. 13. In General Court-Martial Orders Number 678, issued by Eighth Service Command, dated 18 December 1944, the applicant was sentenced to be dishonorably discharged from service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor, at such place as the reviewing authority may direct, for a period of five years. (One previous conviction was considered). The sentence was adjudged and approved on 13 December 1944, but that portion adjudging dishonorable discharge was suspended until the FSM’s release from confinement. 14. On 26 October 1945, so much of the sentence to confinement, published in General Court-Martial Orders Number 678, dated 18 December 1944, as is in excess of two years, and was, by direction of the President, remitted. 15. On 23 March 1946, the unexecuted portion of the sentence (including dishonorable discharge) published in General Court-Martial Orders Number 678, dated 18 December 1944, is, by direction of the President, remitted. Under the provisions of paragraph 3, War Department Memorandum Number 600-45, dated 1 September 1945, the FSM will be furnished a blue discharge certificate. 16. On 19 April 1946, the FSM received a blue discharge. 17. The applicant provides: a. A letter from the Commandant, Headquarters, Southern Branch, U.S. Disciplinary Barracks, North Camp, Camp Hood, TX, presumably dated 11 October 1945, to The Adjutant General, Washington, D.C, stating the FSM appeared before the classification board on 20 August 1945. His service record indicated the FSM was placed in 1 A-O classification (conscientious objector) upon induction. His conduct while in confinement at this institution was excellent. However, the FSM’s application for discharge and transfer to a Civilian Public Service Camp for Conscientious Objectors was not favorably considered. b. A partial letter from dated 4 December 1945, presumably to the Director, National Committee on Conscientious Objectors, states it is evident that the FSM’s general beliefs would have been more appropriately classified 4E than 1A-O, that on a basis of religious conscience he was not actually capable of carrying through the requirements of 1A-O service. It also appears that while in the Army the FSM may have been subjected to a number of borderline situations in which the use of arms or preparation for combat activity was actually in question. c. A partial letter from the Vice-Chairman of The Clemency Board presumably dated 28 February 1946, to the Director, National Committee on Conscientious Objectors, who states Mr. wrote him in reference to the FSM. The letter advised that the Clemency Board remitted the FSM’s sentence and granted a blue discharge. However, the Selective Service disapproved the FSM’s discharge from the Army for assignment to a civilian public service camp. The Board’s action was taken following this disapproval. d. NA Form 13038, dated 2 April 2013, which certifies the FSM’s service was terminated by other than honorable discharge. 18. Conscientious objectors are subject to all Army Regulations with regard to training and discipline with the exception of bearing arms or being trained in their use (War Department Circular 91, 3 April 1943). 19. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board noted that the FSM was classified 1 A-O classification (conscientious objector) upon induction. Conscientious objectors are subject to all Army Regulations with regard to training and discipline with the exception of bearing arms or being trained in their use (War Department Circular 91, 3 April 1943). Being a conscientious objector does not relieve the FSM of the requirements complete basic defensive training to wear and properly operate a gas mask which would be necessary to protect his life in the war zone as gas as a weapon could be employed by the enemy at any location, not just combat locations. Being a conscientious objector also does not relieve the FSM of the obligation under law to obey the orders of a superior officer. The Board noted that the applicant had full benefit of review by a court of military law and legal representation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the blue discharge to be equitable under the circumstances according to law and regulation. The Board also noted that a blue discharge is neutral being neither dishonorable nor fully honorable. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 3. Department of Defense Instruction (DODI) 1300.06 (Conscientious Objectors) defines a Class 1-A-O Conscientious Objector as a member who, by reason of conscientious objection, sincerely objects to participation as a combatant in war in any form, but whose convictions are such as to permit military service in a non-combatant status. a. A Service member may be granted an administrative separation, or restriction of military duties, due to conscientious objection before completing his or her obligated term of service based on the Service member’s respective Military Department’s judgment of the facts and circumstances in the case. b. A Service member who possessed conscientious objection beliefs before entering military service is not eligible for such classification if such beliefs satisfied the requirements for classification as a conscientious objector pursuant to Section 3806(j) of Title 50, United States Code (U.S.C.), also known as the Military Selective Service Act, and other provisions of law, and: (1) The applicant failed to request classification by the Selective Service System; or (2) The application is based upon the same grounds, or supported by the same evidence, as a request that was denied by the Selective Service System. c. Nothing contained in this issuance renders ineligible for classification as a conscientious objector a member of the Military Services who possessed conscientious objector beliefs before entering military service if: (1) Such beliefs crystallized after receipt of an induction notice; and/or (2) The applicant could not request classification by the Selective Service System because of regulations prohibiting the submission of such requests after receipt of an induction notice. d. Due to the personal and subjective nature of conscientious objection, the existence, honesty, and sincerity of asserted conscientious objections cannot be determined by applying inflexible objective standards and measurements on an “across- the-board” basis. e. A Request for discharge or assignment to non-combatant training or service based on conscientious objection will be handled on an individual basis with the final determination made at the headquarters of the Military Department concerned in accordance with the policy and procedures found in this issuance. f. The criteria set forth herein provide policy and guidance in considering applications for separation or for assignment to non-combatant training and service based on conscientious objection. Consistent with the national policy to recognize the claims of authentic conscientious objectors in the Military Services, an application for classification as a conscientious objector may be approved, subject to the limitations of this issuance, for any individual: (1) Who is conscientiously opposed to participation in war in any form; (2) Whose opposition is based on a moral, ethical, or religious belief; and/or (3) Whose position is firm, fixed, sincere, and deeply held. g. A Service member’s objection may be founded on religious training or belief; it may also be based on personal beliefs that are purely moral, ethical in source, or content and occupy to the Service member a place parallel to that filled by more traditional religious convictions. To determine if an applicant’s moral or ethical beliefs oppose participation in war in any form and are held with the strength of traditional religious convictions, the applicant must show that these moral and ethical convictions: (1) Have directed the applicant’s life in the way traditional religious convictions of equal strength, depth, and duration have directed the lives of those whose beliefs are clearly found in traditional religious convictions; and/or (2) Are the primary controlling force in the applicant’s life. h. A primary factor to be considered is the sincerity with which the religious, moral, or ethical belief is held. Great care must be exercised in seeking to determine whether asserted beliefs are honestly and genuinely held. Sincerity is determined by an impartial evaluation of the applicant’s thinking and living in its totality, past and present. Care must be exercised in determining the integrity of beliefs and the consistency of the application. i. Information presented by the applicant must be sufficient to convince that the Service member’s personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of the applicant’s claim. When the Service evaluates applications, the member’s conduct, in particular the outward manifestation of the beliefs asserted, will be carefully examined and given substantial weight. Relevant factors that should be considered in determining an applicant's claim of conscientious objection include: (a) Training in the home and religious organization; (b) General demeanor and pattern of conduct; (c) Participation in religious activities; (d) Ethical or moral convictions gained through training, studying, contemplation, or other activity comparable in rigor and dedication to the processes by which traditional religious convictions are formulated; and/or (e) Credibility of the applicant and persons supporting the claim. Particular care must be exercised not to deny the existence of authentic beliefs simply because those beliefs are incompatible with the reviewing authority’s belief system. An applicant who is otherwise eligible for conscientious objector status may not be denied that status simply because the applicant’s conscientious objection influences the applicant’s personal views concerning the nation’s domestic or foreign policies. The task is to decide whether the beliefs professed are sincerely held, and whether they govern the claimant’s actions in both word and deed. j. The burden of establishing a claim of conscientious objection as a ground for separation or assignment to non-combatant training and service is on the applicant. To this end, the applicant must establish by clear and convincing evidence that: (1) The nature or basis of the claim falls within the definition of and criteria prescribed herein for conscientious objection; and (2) Their belief in connection therewith is firm, fixed, sincere, and deeply held. The applicant has the burden of determining and setting forth the exact nature of his or her request, i.e., whether for separation based on conscientious objection (Class 1-O), or for assignment to non-combatant training and service based on conscientious objection (Class 1-A-O). 4. Army Regulation 615-368 (Enlisted Men – Discharge – Undesirable Habits or Traits of Character), dated 7 March 1945, in effect at the time, provided procedures for the discharge of enlisted men for undesirable habits or traits of character. a. A report will be prepared for the commanding officer prior to the initiation of discharge per this regulation when an enlisted man gives evidence of: (1) habits or traits of character (except when discharge for physical or mental conditions is indicated) which serve to render his service undesirable and his rehabilitation is considered impossible after repeated attempts to accomplish the same have failed, or (2) a psychopathic personality manifested by antisocial or amoral trends, criminalism, chronic alcoholism, drug addiction, pathological lying, or sexual misconduct in the service and cannot be rehabilitated to render useful service. b. Upon receipt of the required report, the commanding officer or the next higher commander, will convene a board of officers, three if practicable, one of whom will be a medical officer, to determine whether or not the enlisted man should be discharged prior to the expiration of his term of service. The proceedings of the board will be set forth on a WD AGO Form 37 (Report of Proceedings of Board of Officers). c. The reviewing authority will endorse on the board proceedings his approval of the action recommended or his determination as to the type of discharge certificate to be furnished, direct the discharge of the enlisted man concerned, and forward the proceedings to the officer who will execute the discharge when discharge is recommended. d. The term to be entered in the certificate of discharge as the reason for discharge will be “Army Regulation 615-368; not eligible for reenlistment, induction, or re- induction.” e. All persons discharged under the provisions of this regulation will be furnished a WD AGO Form 53-36 (Enlisted Record and Report of Separation - Discharge from the Army of the United States (blue)). If the reviewing authority determines that an Honorable Discharge Certificate is to be furnished, the discharge will be effective under the provisions of Army Regulation 615-369 (Enlisted Men – Discharge – Inaptness, Lack of Required Degree of Adaptability or Enuresis), not under this regulation. 5. Army Regulation 615-369, dated 20 July 1944, in effect at the time, provided procedures for the discharge of enlisted men for inaptness, lack of required degree of adaptability, or enuresis (inability to control urination). a. A report will be prepared for the commanding officer prior to the initiation of discharge per this regulation when an enlisted man gives evidence of: (1) inaptness, or (2) not possessing the required degree of adaptability of the military service after reasonable attempts have been made to reclassify and reassign him in keeping with his abilities and qualifications, or (3) disqualification for service because of enuresis, which may be a symptom of some underlying mental or physical condition, including the following: * organic disease * psychoneurosis * psychosis * mental deficiency * psychopathic personality * lack of proper juvenile training b. All persons discharged under the provisions of this regulation will be furnished a WD AGO Form 55 (Honorable Discharge from the Army of the United States) and the discharge certificate will show that reenlistment, induction, or re-induction is not warranted. 6. Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness), as updated on dated 27 October 1948, provided procedures for the discharge of enlisted men for unfitness. It removes the reference to the “blue discharge” and expounds upon what is considered “unfitness” in lieu of “undesirable habits or traits of character.”. It states: a. A report will be prepared for the commanding officer prior to the initiation of discharge and after rehabilitation is considered impossible after repeated attempts to have failed, when an enlisted Soldier gives evidence of: (1) traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct (2) unclean habits, including repeated venereal infections (3) repeatedly committing petty offenses not warranting trial by court-martial (4) habitual shirker (5) a board of medical examiners recommends discharge not because of a physical or mental disability but because of a psychopathic (antisocial) personality disorder, or the board determined he has “no disease” and his record reveals frequent disciplinary infractions with unfounded complaints intended to avoid service b. All persons discharged under the provisions of this regulation will be furnished a WD AGO Form 53-58 (Undesirable Discharge). 7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008954 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1