RECORD OF PROCEEDINGS


	IN THE CASE OF:	   
 

	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20060017412 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Sherri V. Ward

Chairperson

Mr. Richard T. Dunbar

Member

Mr. David W. Tucker

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 that his discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, he was told that he could have his discharge upgraded after three years.

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 June 1970, the date of his discharge.  The application submitted in this case is dated 5 December 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.  On 3 October 1969, the applicant enlisted in the Regular Army for 3 years.  He successfully completed his initial training and was awarded military occupational specialty 13A1O (Field Artillery).  

4.  On 16 April 1970, the applicant was assigned for duty as a cannoneer with the 3rd Artillery Regiment, Fort Knox, Kentucky.

5.  Between 21 April and 13 May 1970, the applicant was counseled on eleven different occasions regarding his duty performance.  There is no record of his receiving any punishment for misconduct.

6.  On 27 April 1970, the applicant underwent a psychiatric evaluation.  The psychiatrist diagnosed him with an immature personality disorder; drug use, distorted sense of responsibility, depression, anorexia, and immature thoughts.  He further found that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  His past history was unremarkable except for his use of various drugs during high school, and his poor achievement in school.  He entered the United States Army impulsively.  He had difficulty adjusting.  He felt fearful of people, dejected, unable to communicate with his peers, desirous of withdrawing, and had lost interest in everything except being with his mother.  His father had died suddenly a few months prior to his enlisting in the United States Army and this apparently intensified his depressed mood.  The psychiatric evaluation revealed the applicant to be a person who spoke in low tones, with a tendency to appear dejected, passively angry, made immature statements and demonstrated a tendency to see things only his own way.  He showed no evidence of psychosis.  His judgment was impaired.  He appeared impulsive and unable to accept his responsibilities.  The psychiatrist recommended that the applicant be considered for discharge under the provisions of Army Regulation 635-212 for unsuitability.

7.  On 18 May 1970, the applicant consulted with counsel, and elected not to make a statement in his own behalf and waived representation by counsel.

8.  On 27 May 1970, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  

9.  On 1 June 1970, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unsuitability.  The commander stated that the applicant was a very high strung individual who had not performed his duties in a satisfactory manner; that he needed constant supervision; that he lacked motivation; and that if allowed to do so, he would sit around feeling sorry for himself.  

10.   On 26 June 1970, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  

11.  Accordingly, he was discharged under honorable conditions on 29 June 1970.  He had completed 8 months and 27 days of creditable active duty.
 
12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.





13.  Army Regulation 635-212, 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation on 29 June 1970 was accomplished in accordance with regulations then in effect.

2.  Based on the applicant’s overall service record, his diagnosed personality disorder, and no record of punishment, it appears that his under honorable conditions discharge was too harsh.  

3.  Therefore, the applicant's request for upgrade of his discharge to honorable should be granted.



4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 June 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

___SVW__  __RTD__  ___DWT_ 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:

a.  showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 29 June 1970;

b.  issuing to the individual concerned an Honorable Discharge Certificate from the Regular Army dated 29 June 1970, in lieu of the General Discharge Certificate of the same date now held by him; and 

c.  issuing to the individual concerned a new DD Form 214.




____Sherri V. Ward ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20070621
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
 GRANT 
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.