RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070012668 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he does not know what went wrong but loves this country and wants to be forgiven.  

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), Correction to DD Form 214 
(DD Form 215), and his General Discharge Certificate.

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.  On 10 March 1966, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 31M2O (Radio Operator and Repairman).

3.  On 26 February 1967, the applicant was assigned for duty as a radio operator with the 41st Signal Battalion, in the Republic of Vietnam.

4.  On 24 June 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for leaving the scene of an accident.  The punishment included reduction to private, pay grade E2; and 14 days restriction and extra duty.

5.  On 22 September 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) for 11 days.  His sentence consisted of reduction to private, pay grade E1, confinement at hard labor for 6 months; and forfeiture of $64.00 pay per month for 6 months.  He was confined for 73 days.
6.  On 13 June 1968, the applicant was returned to the United States for duty at Fort Bragg, North Carolina.  

7.  On 12 November 1968, the applicant received NJP for willfully disobeying a lawful order from his superior noncommissioned officer.  The punishment included reduction to private, pay grade E2; forfeiture of $50.00 pay per month for 1 month; and extra duty for 15 days.  

8.  On 23 May 1969, the applicant was admitted to Psychiatry Service, William Beaumont General Hospital, Fort Bliss, Texas. 

9.  On 6 June 1969, the applicant was diagnosed with a paranoid personality disorder, chronic, severe, manifested by difficulties in interpersonal relationships, problems in handling anger, impulsiveness, tendency to conflict with authority, tendency to get into trouble, depression, and suicide gestures.  His degree of psychiatric impairment was marked.  He was found to have no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist further stated that it was unlikely that the applicant would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  Further rehabilitative efforts would probably be non-productive as his condition was not amenable to treatment in a military setting.

10.  On 14 July 1969, 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 discharge was recommended because of the applicant’s [diagnosed] paranoid personality disorder.   The commander further stated that the applicant had received one special court-martial and had no other record of disciplinary action.  

11.  On 15 July 1969, applicant’s commander advised him that discharge proceedings had been initiated to eliminate him from the service because of his paranoid personality disorder.   During the interview, the applicant was informed of his rights to present his case before a board of officers; to be represented by appointed counsel; and to submit statements in his own behalf.  

12.  On 15 July 1969, the applicant consulted with counsel, and elected to waive consideration of his case by a board of officers; waive appearance before a board of officers; to not to make a statement in his own behalf; and to waive representation by counsel.
13.  On 17 July 1969, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  

14.  Accordingly, he was discharged under honorable conditions on 
23 July 1969.  He had completed 3 years, 4 months, and 13 days of creditable active duty, and had 84 days of lost time due to AWOL and confinement.
 
15.  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.

16.  Army Regulation 635-212 (Personnel Separations), 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.

17.  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 were 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 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  
2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case.  Therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of Secretary of the Army Memorandum, dated 8 February 1978.   

4.  In view of the above, the applicant’s discharge should be upgraded to honorable

BOARD VOTE:

__JEV___  __TMR__  __JCR__  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 the applicant was separated from the service with an Honorable Discharge Certificate on 23 July 1969;

b.  issuing to him an Honorable Discharge Certificate, dated 
23 July 1969, in lieu of the general discharge of the same date now held by him; and

c.  issuing him a new DD Form 214, effective 23 July 1969, showing his characterization of service as honorable.




	___  James E. Vick_______
         		 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.