RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070011530 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 be upgraded to fully honorable.

2.  The applicant states that it was the quickest way to be discharged.  He was not properly and legally advised by his legal counselors.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 14 September 1983.  He completed basic training and advanced individual training and was awarded military occupational specialty 12C (Bridge Specialist).

3.  On 1 May 1984, the applicant was advanced to Private First Class, E-3.

4.  On 4 May 1984, a mental status evaluation diagnosed the applicant with inadequate personality disorder, severe.

5.  On 30 May 1984, the applicant was counseled, apparently by his platoon sergeant/leader.  The counselor noted that the applicant was a good Soldier who was to receive a chapter 5 discharge within 2 weeks.  It was the counselor’s opinion that the chapter discharge should be turned down, that the applicant wanted out of the service for all the wrong reasons.  

6.  On 12 June 1984, the applicant’s commander notified the applicant that he was initiating separation action under the provisions of Army Regulation 635-200, paragraph 5-13, Personality Disorder, due to the applicant’s ability to function effectively in the military environment being significantly impaired as determined by medical authorities.  The applicant was informed he could receive an Honorable, a General, or an Entry Level Separation discharge certificate.

7.  On 12 June 1984, the applicant consulted with counsel and acknowledged notification of the action.  He elected not to submit a statement in his own behalf. 

8.  On 12 June 1984, the applicant’s commander formally recommended that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 5-13.  An attached “Characterization of Service Checklist” noted that the applicant had no lost time; no record of nonjudicial punishment under Article 15, Uniform Code of Military Justice; and no courts-martial.

9.  On 13 June 1984, the applicant was counseled on a DA Form 4856-R (General Counseling Form) regarding his continued negative attitude toward the Army and his inadequate personality order (diagnosis). 

10.  The appropriate authority approved the recommendation and directed the applicant be issued a General Discharge Certificate. 

11.  On 28 June 1984, the applicant was discharged, with a general under honorable conditions characterization of service, in pay grade E-3, under the provisions of Army Regulation 635-200, paragraph 5-13, personality disorder.  He had completed 9 months and 15 days of creditable active service with no lost time.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, paragraph 5-13 set the policy and prescribed procedures for separating members with a personality disorder (not amounting to a disability) that interfered with assignment to or performance of duty when so diagnosed by a physician trained in psychiatry and psychiatric diagnosis.  Separation because of personality disorder was authorized only if the diagnosis concluded that the disorder was so severe that the Soldier's ability to function effectively in the military environment is significantly impaired.  Paragraph 5-5 was referenced for characterization of service.

13.  Army Regulation 635-200, paragraph 5-5b at the time, stated no member would be awarded a characterization of service of under honorable conditions under this section unless the member was notified of the specific factors in his or her service record that warranted such a characterization using the notification procedures.

14.  Army Regulation 635-200, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  An error was made in this case.

2.  When the applicant was notified that he was being considered for separation under the provisions of Army Regulation 635-200, paragraph 5-13, he was informed that he could receive an Honorable, a General, or an Entry Level Separation discharge certificate.  He was not notified of the specific factors in his service record that could have warranted a General discharge; therefore, he could not address why he should not have received a General discharge.  

3.  In addition, it appears that the applicant did not have any specific factors in his service record that could have warranted a General discharge.  He had been advanced to Private First Class, E-3 on 1 May 1984.  On 30 May 1984, his platoon sergeant/leader noted that the applicant was a good Soldier.  The         13 June 1984 counseling concerning his continued negative attitude toward the Army appears to have been an afterthought to justify the General discharge. 

4.  It would be equitable to upgrade the applicant’s discharge to fully honorable.

BOARD VOTE:

__hof___  __jtm___  __rch___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

    a.  showing that he was given an honorable discharge from the Army on        28 June 1984; 
    b.  issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 28 June 1984, denoting an honorable discharge in lieu of the general discharge now held by him; and 

     c.  issuing to him a new DD Form 214 reflecting the above correction.




___Hubert O. Fry______
          CHAIRPERSON




INDEX

CASE ID
AR20070011530
SUFFIX

RECON

DATE BOARDED
200080117
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19840628
DISCHARGE AUTHORITY
AR 635-200, para 5-13. . . . .  
DISCHARGE REASON
A86.00
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.