PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001065355


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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 an honorable discharge (HD).

3. The applicant states, in effect, that there were mitigating factors for his conduct that resulted in his discharge. He claims that he did well in training and received excellent conduct and efficiency ratings throughout. However, his arrival in the Republic of Vietnam (RVN) was a harrowing experience. It began when the helicopter transporting him to his unit elected to do a hot-drop and not land because the base was under enemy fire. He was pushed out of the helicopter with his bag and was left standing on a mountain top with no place to go. When the enemy firing stopped, people began coming out of their bunkers, this was his welcome to the RVN. He claims that he started to develop an attitude when even while constantly being engaged with the enemy, his leaders insisted on stringent discipline that included keeping polished boots and good hair-cuts. He indicates that he started walking off the base, was stopped, and was sent to see a doctor. While waiting to see the doctor he saw many wounded men and blood everywhere, accompanied by a lot of screaming. He goes on to explain several bad experiences he had while undergoing psychiatric care and that during this period he was also in the stockade where several bad things happened. He claims that he was finally told that he was being discharged for disrespect. He goes on to state that subsequent to his discharge he met and married his wife and while things were difficult and he had employment and health problems, they continued to work their way through life. However, his wife died with no warning in 1999, and he suffered a nervous breakdown. At that time, his physician referred him to Veterans Assistance Program Home, King, Wisconsin, where he now resides. He concludes by expressing his hope that his discharge can be upgraded so he can get over that period of his life. In support of his application, he provides a statement from his case social worker and military medical treatment records.

4. The applicant’s military records show that on 22 January 1968, he enlisted in the Regular Army for 3 years. He was trained in military occupational specialty (MOS) 13A (Field Artilleryman) and in August of 1968, he was assigned to the Republic of Vietnam (RVN). On 5 August 1968, he arrived in the RVN and was further assigned to A Battery, 1^st Battalion, 92^nd Artillery, RVN for duty as a canoneer.

5. The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. It likewise contains no evidence of any nonjudicial punishment (NJP) disciplinary action taken under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and it contains no record of court-martial.

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6. The applicant’s Enlisted Qualification Record (DA Form 20) further indicates, in item 33 (Appointments & Reductions), that he was promoted to the highest rank he held on active duty, private first class/E-3 (PFC/E-3), on 26 August 1968; and that he was reduced to the rank of private/E-1 (PVT/E-1) on 16 January 1969. The authority cited for this reduction was Special Orders (SO) Number (#) 14, dated 16 January 1969, issued by headquarters, 1^st Battalion, 92^nd Artillery, RVN.

7. On 18 October 1968, the applicant was admitted to the 71^st Evacuation Hospital, RVN, because of psychosis. He was diagnosed with psychotic depressive reaction, severe, and a possible character and behavior disorder. He was prematurely released from the hospital, and on 19 October 1968, he was readmitted. The impression of the attending physician was that the applicant suffered from a severe character and behavior disorder precipitated by stress into a dysfunctional system of actions.

8. On 21 October 1968, he was medically evacuated to the 8^th Field Hospital, RVN, where he was diagnosed with a sociopathic personality. On 29 October 1968, the applicant was released from the hospital and the attending psychiatrist recommended he be returned to routine duty and if and when he caused further difficulty, he be processed for separation under the provisions of Army Regulation 635-212.

9. On 26 December 1968, the applicant’s unit commander initiated action to discharge the applicant for unsuitability under the provisions of Army Regulation 635-212. He stated that discharge was recommended based on the applicant’s habits and traits of character manifested by repeated commission of petty offenses and habitual shirking. The unit commander further confirmed that the applicant had no previous court-martial convictions and had never been punished under the provisions of Article 15 of the UCMJ. He finally recommended that the applicant be furnished a GD.

10. On 31 December 1968, a psychiatrist at the Pleiku Area Headquarters, RVN, examined the applicant and commented that the applicant had been seen several times in October and was very thoroughly evaluated. After observation at the 71^st Evacuation Hospital, he was felt to be a character and behavior disorder and he was evacuated to the 8^th Field Hospital when this impression was confirmed. The psychiatrist finally diagnosed the applicant with a sociopathic personality and recommended that he be separated from the military service under the provisions of Army Regulation 635-212.

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11. The separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unsuitability, and further directed that the applicant receive a GD. On 16 January 1969, SO # 14, issued by Headquarters, 1^st Battalion, 92^nd Artillery, RVN, directed that the applicant be reassigned to the 507^th Replacement Station, RVN, for separation processing and that he be further assigned to Fort Lewis, Washington, for separation. This order indicated in the standard name line that the applicant held the rank of PV1/E-1, and the date of rank lead line in the orders contained the entry
16 January 1969.

12. On 21 January 1969, the applicant was discharged at Fort Lewis, Washington. At the time of his discharge, he had completed a total of 1 year of active military service and the separation document (DD Form 214) issued to him confirms that he held the rank of PVT/E-1. This document further verifies that the authority for his discharge was Army Regulation 635-212 and he was assigned a Separation Program Number (SPN) of 264, which confirms that he was discharged under unsuitability provisions by reason of a character and behavior disorder.

13. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Members separated by reason of apathy or character and behavior disorders were processed under unsuitability provisions of the regulation. While members separated by reason of reason of habits and traits or shirking were processed under unfitness provisions. When separation for unsuitability was warranted an HD or GD was issued as determined by the separation authority based upon the individual's entire record.

14. On 23 November 1972, Army Regulation 635-200 was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.

15. A Department of the Army (DA) message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976. The changes pertained to the processing of separations based on personality disorders and mandated that an HD be issued to members separated for this reason, except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

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16. 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 or dismissals under Title 10, United States Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

17. Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 provides, in pertinent part, when separation is because of a personality disorder, the service of a soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III. A characterization of service of under honorable conditions may only be awarded to a soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one special court-martial during the current enlistment.

CONCLUSIONS:

1. The Board notes the applicant’s contention that there were mitigating factors for the conduct that resulted in his receiving a GD and it finds this claim has merit. After careful evaluation of the evidence of record and the independent evidence submitted by the applicant, the Board finds several inconsistencies in the applicant’s separation processing.

2. The evidence of record clearly establishes that the applicant was diagnosed with a character and behavior disorder by competent medical authority prior to being processed for separation. However, although his unit commander appropriately processed him for separation under unsuitability provisions of the regulation, the reason for discharge cited was the applicant’s habits and traits of character manifested by repeated commission of petty offenses and habitual shirking; which if correct would have required separation processing under unfitness provisions of the regulation.

3. The separation authority clearly approved the applicant’s GD under unsuitability provisions of the regulation, but failed to identify the specific reason (character and behavior disorder or apathy) for discharge. Further, although the separation authority did not direct it in his approval of the separation action, the applicant was reduced to PVT/E-1. The authority cited for this reduction was
SO # 14, which directed his assignment to the replacement station for separation processing.

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4. The DD Form 214 prepared and issued to the applicant codifies the reason for his discharge with the SPN 264, which denotes an unsuitability discharge based on a character and behavior disorder. Under current regulations, members separated for this reason must be issued an HD unless they have been convicted by a general court-martial or more than one special court-martial. Therefore, given there is no record of any disciplinary action taken against him during his tenure on active duty and in view of these current standards, the Board finds it would be appropriate to upgrade his discharge to an HD in the interest of equity; and to restore his rank to PFC/E-3 at this time.

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

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
21 January 1969, in lieu of the general, under honorable conditions discharge of the same date he now holds; by restoring his rank to private first class/E-3; and by providing him a corrected separation document that reflects these changes.

BOARD VOTE:

__JNS __ LDS __ __JTM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ John N. Slone_ _
                  CHAIRPERSON

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INDEX

CASE ID	AR2001065355
SUFFIX
RECON
DATE BOARDED	2002/03/21
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1969/01/21
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unsuitability
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 340189	144.0000
2.
3.
4.
5.
6.