PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 January 2002
         DOCKET NUMBER: AR2001060050


         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Richard T. Dunbar		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

3. The applicant states, in effect, that he is unsure why the reason for his discharge was unfitness and why he received a GD.

4. The applicant’s military records show that on 9 October 1964, he entered active duty in the Regular Army. He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and he completed a combat tour in the Republic of Vietnam (RVN) on 25 November 1966.

5. The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 and that during his active duty tenure he earned the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 60 Device, the Purple Heart, and the Combat Infantryman Badge. His record also reveals an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on six separate occasions and a conviction by a summary court-martial.

6. On 23 March 1967, the applicant underwent a psychiatric evaluation at the United States Army Hospital, Fort Carson, Colorado. The psychiatrist who conducted the evaluation diagnosed the applicant as suffering from an unspecified personality disorder that resulted in his frequent and repetitious use of narcotics, stimulants, and hypnotics. The psychiatrist recommended that no further rehabilitation attempts be made and that the applicant be processed for separation under the provisions of Army Regulation 635-212.

7. On 28 March 1967, the applicant was notified by his unit commander that separation action was being initiated against him for unsuitability under the provisions of Army Regulation 635-212. The commander cited the applicant’s addiction to narcotics that resulted in a lack of responsibility and poor conduct and efficiency as the basis for taking the action. The applicant acknowledged that he was notified of the separation action, waived the right to consulting counsel, and elected not to submit a statement in his own behalf.

8. On 8 April 1967, the separation authority approved the applicant’s separation for unsuitability under the provisions of Army Regulation 635-212 and directed that he receive a GD. Accordingly, on 29 May 1967, the applicant was discharged from the Army with a GD after having served a total of 2 years,
6 months, and 15 days of creditable active military service and having accrued a total of 36 days of time lost due to AWOL.


9. The Armed Forces of the United States Report of Transfer or Discharge
(DD Form 214), dated 29 May 1967, erroneously assigned the applicant a Separation Program Number (SPN) of 384 which indicates the reason for his separation was unfitness as opposed to unsuitability as was approved by the separation authority.

10. On 10 May 1987, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable and therefore, denied his request for an upgrade to his discharge.

11. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. Individuals separated by reason of unsuitability based on a character and behavior disorder were furnished an honorable or general discharge as warranted by the military record.

12. Army Regulation 635-200 was revised on 1 December 1976. In connection with these changes, a Department of the Army Memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. A second memorandum, dated, 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. The demonstrable reasons cited as justification for issuing a less than fully honorable discharge were conviction by general court-martial or by more than one special court-martial.

13. Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges. Section 4 set forth the objectives for discharge review and stated, in pertinent part, that a change in policy, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge. In addition, it indicates that a change of discharge is appropriate when there is substantial doubt the same discharge would be received if the relevant current policy had been in effect at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

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14. Department of the Army message # 302221Z, March 1976 changed “character and behavior disorder” to “personality disorder”. The current Army policy pertaining to separation by reason of personality disorder is contained in paragraph 5-13, Army Regulation 635-200. It states, in pertinent part, that when separation is because of a personality disorder, the service of a soldier separated per this paragraph will be characterized as honorable. A characterization of service of general, under honorable conditions may only be awarded to a soldier who has been convicted of an offense by general court-martial or who has been convicted by more than one special court-martial in the current enlistment.

CONCLUSIONS:

1. The evidence of record confirms that the applicant was diagnosed by a psychiatrist as suffering from a personality disorder and as a result was recommended for separation for unsuitability by his unit commander. It further confirms that the separation authority approved the applicant’s discharge for unsuitability based on this personality disorder; however, someone in the discharge process erroneously changed the reason for separation to unfitness as evidenced by the erroneous SPD code assignment contained in the applicant’s separation document. Therefore, the Board concludes that reason for discharge listed in the applicant’s separation document is in error and should be corrected at this time.

2. In addition, it appears that when the ADRB reviewed the applicant’s case and denied his request for an upgrade, they did not discover that someone in the discharge process had erroneously changed the reason for separation from unsuitability to unfitness. Further, it is reasonable to presume, had they discovered the error and had they reviewed it under DOD Directive 1332.28, his discharge would have been upgraded based on the application of the current regulation for discharges based on a personality disorder. It appears appropriate that this Board adopt and apply the standards set forth in this DOD Directive in this particular case.

3. Accordingly, although the discharge was proper and equitable at the time it was issued, in view of the current standards for discharges issued because of a personality disorder, a discharge under honorable conditions is unduly harsh and unjust. Therefore, the Board concludes it would be appropriate to correct the inequity and issue the applicant an HD at this time.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be
corrected by showing that the individual concerned received an honorable discharge on 29 May 1967, in lieu of the general, under honorable conditions discharge of the same date he now holds; by changing the SPD code entry
in block 11c (Reason & Authority) of his separation document to read
264 (unsuitability-character & behavior disorder); and by issuing him a corrected separation document that reflects these changes.

BOARD VOTE:

__GDP__ _ _WTM__ __RTD GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __George D. Paxson__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060050
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/01/24
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	1967/05/29
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unsuitability
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	86.00
2.
3.
4.
5.
6.