PROCEEDINGS


         IN THE CASE OF:
                                   


         BOARD DATE: 21 October 2003
         DOCKET NUMBER: AR2002080884


         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. Chun		Director
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones II		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 a fully honorable discharge. He also requests, in effect, that his DD Form 214, (Certificate of Release or Discharge from Active Duty) be corrected to show several missing medals/awards and training certifications.

3. He states, in effect, that he was conned into reenlisting into the Army. He claims, that when he got to his duty station, he was not transferred back to his old unit. He states, he reenlisted three days prior to Christmas, in order to do his part for his country. During his first period of enlistment, his service was exemplary, he had security clearances and did everything asked of him. He adds that he held an excellent rating until he reenlisted and was stationed in Florida. Therefore, he asks that the Board, “please, take all the things I have sent you and correct an error made by myself and those acting for the Army 30 years ago. I ask that my DD Form 214 show an HONORABLE DISCHARGE reflect my military training, Red Eye, Hawk, Light weapon. CBR qualifying expert m-16 and my good conduct metals. My son joined the Army and became some kind of Eye Doctor for that I thank you. But please help me correct this error.” In support of his claim he submits a 50 page folder which includes several military orders, medical documents, separation documents, civilian employment commendations from the Warden and Superintendent of the Arizona Department of Corrections, character of reference letters from a fellow patrolman at the Arizona Department of Corrections, a friend at the Department of Public Safety, Toltec, Arizona and a letter of recognition for his skill as a Liaison Contract Specialist at the Rhicard Army Family Housing Project, Fort Drum, New York.

4. The applicant’s military records show that on 6 January 1971, he enlisted in the Regular Army (RA) for a period of 2 years. He completed training and was awarded military occupational specialty (MOS) 11B10 (Infantryman).

5. On 8 March 1972, he was honorably discharged for the purpose of immediate reenlistment. On 9 March 1972, he reenlisted in the RA for 4 years. At the
time of his reenlistment he held the rank of specialist four/E-4 and he had
completed 1 year, 2 months and 3 days of honorable active military service.
His DD Form 214, Item 23 (Primary Specialty Number, Title and Years and
Months in Specialty) is annotated to show 11B10, Light Weapons Infantry.
Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) shows he was awarded the National Defense Service Medal. It does not show the award of the Good Conduct Medal (GCMDL). Item 25 (Military Education) shows he received educational credit for the Uniform Code of Military Justice, Geneva Convention, Code of Conduct and Chemical Biological and Radiological Training.

6. On 13 March 1972, the applicant was assigned temporary duty at Fort Lewis, Washington. He was then reassigned for AIT training in MOS 16E20 (Hawk Fire Control Crewman) at Fort Bliss, Texas, which he completed on 22 April 1972.
On 16 June 1972, he was transferred to Homestead Air Force Base, Florida, for duty in his MOS.

7. On 4 August 1972, upon recommendation of the unit commander, the applicant underwent a psychiatric examination. The examiner, a member of the Air Force Medical Corps, diagnosed the applicant as having Adolescent Situational Reaction Disorder. He further determined that the diagnosis was a disorder of character, behavior or intelligence. He recommended administrative separation based upon the applicant’s performance of duty and the circumstances involved.

8. On 28 August 1972, based upon the psychiatrist’s recommendation, the unit commander notified the applicant of his intent to initiate discharge proceedings under the provisions of Army Regulation 635-212, paragraph 6(b), for unsuitability.

9. On 30 August 1972, the applicant acknowledged that he had consulted with counsel concerning the proposed elimination for unsuitability. He waived consideration of his case by a board of officers and representation by counsel. He also declined to submit a statement in his own behalf. He acknowledged that he understood the consequences of both a general and an undesirable discharge. The separation authority approved the recommendation and directed that a General Discharge Certificate be issued.

10. On 22 September 1972, the applicant was separated with a general discharge, under honorable conditions. He was credited with 6 months and
14 days of active military service for his current period of service. There is no record of lost time. His DD Form 214 Item 23 (Primary Specialty Number, Title and Years and Months in Specialty) is annotated to show his secondary MOS as 16E20, Hawk Fire Control Crewman. Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or authorized) shows none. Item 25 (Military Education) shows he received educational credit for his MOS training, as a Hawk Fire Control Crewman, MOS 16E10, at Fort Bliss, Texas for 8 weeks in 1972.

11. The applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant was authorized award of the Sharpshooter Qualification Badge with Rifle Bar.

12. Army Regulation 600-8-22 provides that the GCMDL is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. Although there is no automatic entitlement to the GCMDL, disqualification must be justified. Current practice requires that the commander provide written notice of non-favorable consideration and permits the individual to respond.

13. There is no evidence in the applicant’s records to show that he ever applied to the Army Discharge Review Board within its 15-year statute of limitations.

14. Army Regulation 635-212, (Enlisted Separations) then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

15. 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 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 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 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 applicant’s separation was accomplished in compliance with applicable regulations in effect at the time. However, policy revisions implemented by the Army in 1977 and 1978 specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are clear and demonstrable reasons why it should not be appropriate. A conviction by a general court-martial or by more than one special court-martial was the standard established for showing these clear and demonstrable reasons that would justify a less than an honorable discharge. Further, retroactive application of this policy was directed when reviewing applications for upgrade of discharges based on personality disorders.

2. The evidence of record in this case confirms that the clear and demonstrable reasons (one general or two special court-martial convictions) required to deny an honorable discharge are not present in the applicant’s case. In view of this fact and given he was separated by reason of a character and behavior disorder, the Board finds the general discharge he received is inequitable under current regulatory standards. The Board concludes his discharge should be upgraded to an honorable discharge.

3. The applicant’s DD Forms 214, dated 8 March and 22 September 1972, correctly reflect the appropriate credit for his MOS, military education and training. Therefore, no error has been shown that would warrant a change.

4. The Board, also notes that there is no evidence in the applicant’s military records, nor does he provide any evidence which shows he met the eligibility criteria for award of the Good Conduct Medal. However, the applicant was awarded the Sharpshooter Qualification Badge with Rifle Bar. Therefore, he is entitled to correction of his record by adding the weapon qualification to his DD Form 214.

5 In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below correct an error and rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:
a. voiding the 22 September 1972 general discharge currently held by the individual concerned and issuing him an honorable discharge of the same date, with no change in reason or authority; and

b. adding the Sharpshooter Qualification Badge with Rifle Bar to item
24 (Awards and Decorations) of his 22 September 1972 DD Form 214.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___MHM_ ___WDP ___FCJ__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  __Melvin H. Meyer_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080884
SUFFIX
RECON
DATE BOARDED	2003.10.21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT-PARTIAL
REVIEW AUTHORITY	DASA
ISSUES 1.	A120.0000
2.	A110.0400
3.
4.
5.
6.