PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 May 2003
         DOCKET NUMBER: AR2003084512


         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. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Mr. Robert L. Duecaster		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 he was a good soldier, but was very young and immature at the time. He claims that he went to see a psychiatrist for help and instead he was discharged.

4. The applicant’s military records show that on 6 March 1972, he enlisted in the Regular Army and entered active duty for 3 years. He successfully completed basic training and was trained in and awarded military occupational specialty (MOS) 52B (Power Generator Repairman).

5. The applicant’s Enlisted Qualification Record (DA Form 20) confirms that he was advanced to private/E-2 on 31 May 1972, and this was the highest rank he attained while serving on active duty. It also shows that on 4 June 1973, he was reduced to private/E-1 for cause.

6. The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. It also reveals an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on five separate occasions and numerous counseling records for poor performance of duty and minor disciplinary infractions.

7. On 26 July 1973, while serving in Germany, the applicant was referred to the Darmstadt Health Clinic for evaluation of his potential for retention in the service. The applicant expressed his concern that his unit had begun chapter 13 separation proceedings, and above all he wanted to continue to serve toward an honorable discharge.

8. On 26 November 1973, an evaluation of the applicant’s treatment progress was provided to the commander. The evaluation indicated that the applicant had a severe personality problem that he suffered from all his life. It further stated that the unit could not be expected to give the applicant the time that would be needed to deal completely with his personality problems. The applicant needed more latitude than could be provided in the Army. However, his prognosis for adjustment on the outside was good and he showed unusual potential. The statement concluded by indicating that discharge was probably the only answer for the applicant and the unit.

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9. The applicant’s unit commander prepared an evaluation of the applicant’s conduct and performance for the purpose of separation processing under the provisions of chapter 13, Army Regulation 635-200. The unit commander outlined the rehabilitative steps that had been taken on the applicant and concluded that the applicant had failed to respond and had no potential for continued service. This evaluation contained the recommendation of the attending psychiatrist, who recommended that he applicant be discharged on the grounds of a character and behavior disorder.

10. On 5 December 1973, the unit commander notified the applicant that he intended to initiate action to discharge the applicant under the provisions of paragraph 13-5b (2), Army Regulation 635-200, for unsuitability (character and behavior disorder).

11. On 6 December 1973, the applicant consulted counsel and after being advised of the basis for the contemplated separation action, he completed his election of rights. The applicant waived consideration of his case and personal appearance before a board of officers, he waived his right to representation by counsel, his right to examination by a psychiatrist, and he elected not to submit a statement in his own behalf.

12. The unit commander recommended the applicant’s separation under the provisions of paragraph 13-5b (2), Army Regulation 635-200, by reason of character and behavior disorder. On 11 December 1973, the separation authority approved the applicant’s discharge for unsuitability and directed that the applicant receive a GD.

13. The separation document (DD Form 214) issued to the applicant confirms that he was separated with a GD on 29 December 1973. At the time of his discharge, he held the rank of private/E-1 and he had completed a total of 1 year, 9 months, and 24 days of active military service. This document further confirms that the authority for his separation was paragraph 13-5b(2), Army Regulation 635-200, and the reason was unsuitability (character and behavior disorder).

14. There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations.

15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 13-5b (2), in effect at the time, contained the policy for separating individuals for unsuitability based on a character and behavior disorder. 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.

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16. 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.

17. 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. It states, in pertinent part, that a discharge will be deemed to be inequitable if it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable, and if there is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available at the time of the discharge proceedings under consideration.

18. 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 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, and that the separation authority approved his GD under unsuitability provisions of the regulation based on this diagnosed character and behavior disorder.

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2. DOD Directive 1332.28 provides uniform discharge review standards that are applicable to all Military Departments. This directive states, in pertinent part, that a discharge will be deemed to be inequitable if there is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available at the time of the discharge proceedings under consideration. In March 1976, the Army changed “character and behavior disorder” to “personality disorder” and the separation regulation was revised.

3. Under current regulations, members separated by reason of a personality disorder must be issued an HD unless they have been convicted by a general court-martial or by more than one special court-martial. Given the applicant’s disciplinary history does not rise to the level that authorizes a GD under existing regulatory policy, the Board finds his discharge is inequitable under current standards. Therefore, the Board concludes that it would be appropriate to upgrade his discharge to an HD at this time in the interest of equity.

4. 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
29 December 1973, in lieu of the general, under honorable conditions discharge of the same date he now holds; and by providing him a corrected separation document that reflects this change.

BOARD VOTE:

___MM_ _SAC___ __RLD__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Samuel A. Crumpler_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003084512
SUFFIX
RECON
DATE BOARDED	2003/05/08
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1973/12/29
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Unsuitability
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.