RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060008637 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann 

Chairperson

Mr. David K. Haasenritter

Member

Mr. Ronald D. Gant

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 her general under honorable conditions discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that during her recruitment and basic training she had no disciplinary actions.  She states that her conduct and efficiency rating were excellent and therefore, a general under honorable conditions discharge was not warranted and should be upgraded to fully honorable.  

3.  The applicant continues that under the Nelson Memorandum an upgrade to a fully honorable discharge can be awarded if due to a personality disorder.  

4.  The applicant provides a copy of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 December 1968, the date of her discharge from active duty.  The application submitted in this case is dated 7 June 2006.

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.  Records show the applicant entered the Regular Army on 14 August 1968 for a period of three years.  The applicant's record shows that she completed basic combat training but did not complete her advance individual training and was therefore, assigned military occupational specialty (MOS) 09B0O (Trainee).  The highest rank she attained while serving on active duty was private/pay grade E-2. 

4.  On 6 November 1968, non-judicial punishment was imposed against the applicant for being absent without leave (AWOL) on 4 November 1968.  Her punishment consisted of restriction for 7 days. 

5.  On 25 November 1968, the applicant was seen for a psychiatric evaluation at the Mental Hygiene Consultation Service, Department of Psychiatry, Fort Gordon, Georgia.  The evaluation revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  

6.  The evaluation continues that the applicant was and is capable of distinguishing right from wrong and of adhering to the right.  The evaluation continues that the applicant possesses sufficient mental capacity to act in her own behalf in administrative procedures deemed necessary by command.  

7.  The evaluation continues that the applicant was diagnosed with personality, immature, chronic, moderate, manifested by her inability to adjust to military environment; being AWOL and other escape-type behavior including suicide gesture, immaturity, unrealistic reason for enlistment; stress was undetermined; predisposition was severe; and impairment for further military duty was none.  

8.  The findings also show it not to be in the line of duty and that her condition existed prior to entering the service.  

9.  The doctor concluded his evaluation by strongly recommending she be administratively separated under the provisions of Army Regulation
635-212 (Personnel Separations) for unsuitability.

10.  On 5 December 1968, the applicant was notified by her commander of the intent to separate her under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability.

11.  On 5 December 1968, the commander further advised the applicant of her right to present her case before a board of officers, to be represented by counsel, to submit statements on her own behalf, and to waive her rights in writing.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to her, she waived her right to consideration of her case by a board of officers, personal appearance before a board of officers, and her right to counsel.  The applicant also elected not to submit a statement on her behalf.





12.  On 9 December 1968, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability and that she receive a General Discharge Certificate.  On 19 December 1968, the applicant was discharged accordingly.  The DD Form 214 issued to her at that time, confirms she was discharged under the provisions of Army Regulation
635-212 and issued a Separation Program Number (SPN) code 264.  She completed a total of 4 months and 5 days of creditable active military service.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of her discharge within its 15-year statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability.  An undesirable discharge was normally considered appropriate for members separating under these provisions.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  A Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman-Nelson 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.

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.

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.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time of the applicant's separation, prescribes specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPN Codes to be entered on the DD Form 214.  Section III (Separation Program Numbers) of this Army regulation shows that SPN 264 will be assigned to Soldiers being separated under Army Regulation 635-212, by reason of "Enlisted Personnel - Unsuitability, character and behavior disorders."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the general under honorable conditions discharge she received should be upgraded to a fully honorable discharge because she had a personality disorder at the time of her discharge.

2.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the administrative separation process.  

3.  The applicant's record of service shows that she was evaluated by a military mental health professional who determined that she was not qualified for further military service due to personality, immature, chronic, moderate, manifested by her inability to adjust to military environment; being AWOL and other escape-type behavior including suicide gesture, immaturity, unrealistic reason for enlistment; stress was undetermined; and predisposition was severe.

4.  The Nelson Memorandum specified that the presence of a personality disorder diagnosis justifies 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 honorable discharge unless they have been convicted by a general court-martial or more than one special court-martial.  

5.  The applicant's records show that she served only 4 months and 5 days of service.  Her records show that she received an Article 15 for being AWOL for one day and was not involved in any other significant incidences of misconduct.  Therefore, given the fact the applicant's disciplinary record does not rise to a 
level that supports a general discharge, her discharge is too harsh under current standards and should be upgraded to an honorable discharge in the interest of equity.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 December 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 December 1971.  The applicant did not file within the 3-year statute of limitations.  However, it would be in the interest of justice to excuse failure to timely file in this case based on the evidence presented.

BOARD VOTE:

__RDG___  _JCR___  __DKH__  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 she received an honorable discharge on 
19 December 1968, in lieu of the general under honorable conditions discharge of the same date she now holds and issuing her a new separation document that reflects this change.  


__Jeffrey C. Redmann ___
          CHAIRPERSON
INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.