RECORD OF PROCEEDINGS


	IN THE CASE OF:       
	 

	BOARD DATE:           30 August 2005                   
	DOCKET NUMBER:  AR20050000989


	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. Paul M. Smith

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Leonard G. Hassell

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

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

2.  The applicant states, in effect, he has lived with the shame of a GD since 1969 and hopes to now remove this shame from his life.  He states that he joined the Army at the age of 17 because of a troubled home environment, hoping this would solve his problems.  He claims he was unaware that he was so immature and totally unprepared for Army life.  He now requests his discharge be upgraded to remove the shame he has lived with for more than 30 years.  

3.  The applicant provides a self-authored statement and copy of his separation document (DD Form 214) in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 21 November 1969.  The application submitted in this case is dated 5 January 2005.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 30 September 1968, at the age of 17.  He successfully completed basic combat training at Fort Ord, California and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 72B (Communications Center Specialist).  

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was promoted to the rank of private first class (PFC) on 16 May 1969.  It also shows that during his active duty tenure, he earned the National Defense Service Medal and Sharpshooter Qualification Badge with Rifle Bar.  

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and his conviction by a Special Court-Martial (SPCM).  

6.  On 8 October 1969, a psychiatric evaluation was completed on the applicant.  The examining physician found the applicant suffered from an emotionally unstable personality (severe with passive-aggressive features) and diagnosed the applicant with a character and behavior disorder. 

7.  The applicant was notified by his unit commander that separation action on him was being contemplated.  The applicant consulted legal counsel and was advised of the basis for his contemplated separation for unsuitability, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers and he elected not to submit a statement in his own behalf.  

8.  On 17 October 1969, the applicant’s unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  The unit commander cited the applicant’s psychological problem as the basis for separation.  

9.  On 13 November 1969, the separation authority approved the applicant’s discharge under the provisions of paragraph 6b(2), Army Regulation 635-212, by reason of unsuitability (character and behavior disorder), and directed that the applicant receive a GD.  On 21 November 1969, the applicant was discharged accordingly.  

10.  The DD Form 214 issued to the applicant at the time confirms he completed a total of  1 year, 1 month and 15 days of creditable active military service and accrued 7 days of time lost due to AWOL.  This document further shows the applicant was assigned a Separation Program Number (SPN) of 264, which reflected a character and behavior disorder separation.  However, the separation document erroneously indicates the authority for the applicant’s discharge was Army Regulation 635-200.  

11.  On 27 September 1977, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, denied his request to upgrade his discharge.  


12.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under these provisions could receive either an HD or GD.

13.  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.  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.  

14.  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.

15.  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.

16.  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 SPCM during the current enlistment.


17.  Army Regulation 635-5-1 (Separation Codes)provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that the SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of 
Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under unsuitability (character and behavior disorder) provisions of the regulation in effect at the time.  It further shows that his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.  

2.  The applicant’s record further shows his case was reviewed by the ADRB prior to the implementation of the Nelson Memorandum, which 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.  Under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD unless they have been convicted by a general court-martial or more than one SPCM.  Therefore, given the applicant’s disciplinary record does not rise to a level that supports a GD, his discharge is too harsh under current standards and should be upgraded to an HD in the interest of equity.  

3.  The evidence of record also confirms the authority for the applicant’s separation was paragraph 6-b(2), Army Regulation 635-212, and not 
Army Regulation 635-200, as is erroneously indicated on the applicant’s separation document.  Thus, it would also be appropriate to administratively correct the authority for separation listed on the separation document at this time. 

BOARD VOTE:

___PMS_  __YM ___  ___LGH_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he received an honorable discharge on 
21 November 1969, in lieu of the general, under honorable conditions discharge of the same date he now holds; by showing the authority for his separation was paragraph 6b(2), Army Regulation 635-212; and issuing him a new separation document that reflects these changes.  




		____Paul M. Smith________
		        CHAIRPERSON


INDEX

CASE ID
AR20050000989
SUFFIX

RECON

DATE BOARDED
2005/08/30
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1969/11/21
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON
C&B Disorder 
BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schneider
ISSUES         1.  189
110.0000
2.

3.

4.

5.

6.