PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 February 2003
         DOCKET NUMBER: AR2002076789


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Lester Echols		Member
Mr. Allen L. Raub		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 that his general discharge be upgraded to honorable.

3. The applicant states, in effect, that a review of his records will show that the only trouble he had was fighting with his sergeant, who did not like people of Italian descent. He further states that because he served his country in time of war, without reservation, he should receive an honorable discharge.

4. The applicant’s military records show that he enlisted with parental consent in Brooklyn, New York, on 19 April 1967, for a period of 3 years. He was transferred to Fort Gordon, Georgia, to undergo basic combat and advanced individual training (AIT). On 9 August 1967, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a noncommissioned officer (NCO). His punishment consisted of a forfeiture of pay, extra duty and restriction.

5. He completed his AIT and was transferred to Fort Benning, Georgia, where he completed airborne training and was transferred to Germany on 7 November 1967, for duty as a radio relay operator.

6. On 14 December 1967, NJP was imposed against him for being drunk and disorderly in uniform while assigned to the replacement detachment. His punishment consisted of a forfeiture of pay and a oral reprimand.

7. On 18 December 1967, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 19 December 1967 for a period of 3 years.

8. On 22 January 1968, NJP was imposed against him for being drunk and disorderly in public. His punishment consisted of a forfeiture of pay, extra duty and restriction.

9. He was convicted by a special court-martial on 8 March 1968, of being incapacitated for the proper performance of his duties due to his indulgence in intoxicating liquor, being disorderly in a public place, willfully damaging his detention cell, being disrespectful in language towards his first sergeant, being disrespectful in language towards a superior commissioned officer and using threatening/provoking language towards a superior NCO. He was sentenced to be reduced to the pay grade of E-1, to be confined at hard labor (CHL) for 6 months and a forfeiture of pay. On 8 April 1968, the convening authority suspended the unexecuted portion of his sentence as pertained to CHL, for a period of 6 months.

10. On 18 September 1968, the applicant’s commander submitted a request to have the applicant rehabilitatively transferred to another unit. He cited as the basis for his request, the applicant’s disciplinary record, his failure to respond to numerous counseling sessions and his unsatisfactory conduct and efficiency after having been transferred five times within the unit. The request was approved and the applicant was reassigned from an infantry company to an artillery battery within the division. It appears that he was transferred to another battery after 2 months and remained in that battery for 1 month, until he was transferred to Vietnam on 2 March 1969.

11. On 9 March 1969, he was counseled by his platoon sergeant for failure to obey orders from NCOs assigned over him. His first sergeant counseled him on 10 March, 21 March and 10 April 1969 for job performance, his behavior, and for being disrespectful towards an NCO. His platoon sergeant again counseled him on 11 April 1969 regarding his disrespect to NCOs.

12. The applicant underwent a psychiatric examination on 26 April 1969 and was diagnosed as having a character and behavior disorder (passive-aggressive personality, aggressive type, chronic, severe). The examining psychiatrist opined that while the applicant was mentally responsible and was able to distinguish right from wrong, it was unlikely, given his personality disorder, that further efforts to rehabilitate the applicant would be successful. He recommended that the applicant be separated for unsuitability under the provisions of Army Regulation 635-212.

13. The applicant’s commander initiated a recommendation to discharge the applicant from the service for unsuitability due to a character and behavior disorder, under the provisions of Army Regulation 635-212, on 30 April 1969. He cited as the basis for his recommendation, the psychiatric report, his disciplinary record, his inability to effectively respond to orders, lack of respect for authority, and his failure to respond to repeated counseling and rehabilitation efforts. After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

14. On 5 May 1969, the appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

15. Accordingly, he was discharged under honorable conditions on 31 May 1969, under the provisions of Army Regulation 635-212, for unsuitability due to a character and behavior disorder. He had served 1 year, 4 months and 11 days of active service during his current enlistment and had 31 days of lost time due to confinement. At the time of his discharge he acknowledged that he understood the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge. However, there is no evidence in the available records to show that he ever applied to that board within the 15-year statute of limitations.
16. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability or unfitness. It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability, based on a diagnosed character and behavior disorder. Although a general discharge was authorized, an undesirable discharge was normally considered appropriate.

17. Army Regulation 635-200 was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service was to be determined solely by the individual’s military record during the current enlistment. Further, any separation for unsuitability, based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. 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 upgrades 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 diagnosis would justify 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. 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.

CONCLUSIONS:

1. The evidence of records shows that the applicant’s administrative separation on 31 May 1969 was accomplished in accordance with regulations then in effect.

2. While the applicant’s behavior is not condoned by the Board and his service is not as flawless as he would have the Board to believe, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently.

3. Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

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



RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 31 May 1969.

2. That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 31 May 1969, in lieu of the general discharge of the same date held by him.

BOARD VOTE:

___alr___ __jhl ____ __le ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Joann H. Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076789
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/20
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1969/05/31
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	UNSUIT/C&B
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 547	144.400/A47.00
2.
3.
4.
5.
6.