RECORD OF PROCEEDINGS


	
	

	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070013035 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that while he was in the shower there was horseplay and one Soldier got upset.  He continues that the Soldier said they were making homosexual advances towards him.  The applicant adds that the advances were not true, that it was all in fun.  The applicant continues that his discharge should be upgraded because the whole thing was a big misunderstanding at the time.
 
3.  The applicant provides no additional documentary evidence in support of this application.  

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 31 March 1964 for a period of three years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 63B (Wheel Vehicle Repairman).  He was assigned to Headquarters Company 2nd Battalion, 37th Armor of the 4th Armored Division in Germany during the period 18 September 1964 through 10 July 1967.

3.  The applicant’s record shows that he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with the M-14 Rifle Bar.


4.  The applicant's record reveals a disciplinary history that includes the applicant's acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice for missing bed check on 3 November 1964.  His punishment consisted of a forfeiture of $15.00 pay and restriction for 7 days.  

5.  The applicant was placed under psychiatric observation by a military medical psychiatric medical doctor on 16 January 1965.  The examining psychiatrist states that the applicant's mental status was manipulative and self-excusing.  The examining psychiatrist continued that the applicant appeared slightly effeminate which seemed more related to his playing the "wise guy" role rather than answering questions of his sexual identify.  The examining psychiatrist adds that the applicant was alert, oriented, and showed no signs of organic brain disease or psychosis.  The examining psychiatrist stated that the applicant's mood and affect appeared to fluctuate properly, his memory was intact, his intellectual functioning was in the normal range, and he was psychiatrically cleared for appropriate administrative action.

6.  On 25 January 1965, the applicant was punished under Article 15, of the UCMJ, for missing bed check and remaining out past limitations on 23 January 1965.  His punishment consisted of a forfeiture of $15.00 pay for month, restriction and extra duty for 14 days.

7.  On 22 April 1966, the applicant was punished under Article 15, of the UCMJ, for being disrespectful in language and deportment [physical posture] towards his superior noncommissioned officer on 11 April 1966.  The applicant also failed to go to his appointed place of duty on 8 April 1966.  His punishment consisted of a forfeiture of $15.00 pay for 1 month, and restriction and extra duty for 14 days.

8.  On 9 June 1966, the applicant was punished under Article 15, of the UCMJ, for being absent from his unit.  His punishment consisted of a reduction to the rank of private/pay grade E-2.

9.  On 24 September 1966, the applicant was punished under Article 15, of the UCMJ, for being absent from bed check on 18 September 1966.  His punishment consisted of a forfeiture of $70.00 pay for 1 month.

10.  Special Court-Martial Order Number 7, dated 18 February 1967, shows the applicant was found guilty and convicted of the intent to commit sodomy on 4 January 1967, and to commit assault upon a fellow Soldier by grabbing his neck and attempting to place his exposed penis between the Soldiers legs from behind on 25 December 1966.  The resultant sentence included confinement at hard labor for 60 days, a forfeiture of $85.00 pay per month for 6 months, and reduction to the rank of private/pay grade E-1.  The sentence was adjudged on 9 February 1967.  

11.  Special Court-Martial Order Number 13, dated 13 April 1967, shows the unexecuted portion of his sentence to confinement at hard labor for 60 days, a forfeiture of $85.00 pay per month for 6 months, and reduction to the rank of private/pay grade E-1 was suspended until 8 August 1967, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

12.  Special Court-Martial Order Number 17, dated 2 May 1967, shows the unexecuted portion of the sentence to confinement at hard labor for 60 days, a forfeiture of $85.00 pay per month for 6 months, and reduction to the rank of private/pay grade E-1 was vacated, and the suspended portion of the sentence was duly executed.

13.  The applicant's record shows a second psychiatric evaluation was completed prior to administrative action under the provision of Army Regulation 635-212 by reason of unsuitability for continued military service on 2 June 1967.  The military psychiatric medical doctor diagnosed the applicant with a passive-aggressive personality, chronic, moderately severe, not in the line of duty, not due to his own misconduct.  The examining psychiatrist stated that the applicant's behavior disorder would persist despite attempts at counseling, and that administrative manipulations or disciplinary actions were not amenable to rehabilitation efforts which could normally be provided by the military.  The examining psychiatrist further stated that if the applicant was retained in the service he would become an increasing administrative and/or psychiatric liability.  The examining psychiatrist cleared the applicant for administrative action under the provisions of Army Regulation 635-212 for unsuitability.

14.  On 6 June 1967, the Physical Examination Section at the United States Army Hospital in Munich Germany provided the applicant's commanding officer at Headquarters Company, 2nd Battalion of the 37th Armor the report.  The examination found through a psychiatric evaluation and a separation medical examination that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

15.  On 19 June 1967, the applicant was notified of pending separation action under the provisions of Army Regulation 635-212 by reason of unsuitability for continued military service caused by a character and behavior disorder.  

16.  On 26 June 1967, the unit commander recommended the applicant be separated from the service with a General Discharge Certificate.  The unit commander stated the discharge was recommended because of the applicant's past performance for his blatantly defying authority and discipline which is the keystone of a successful Army.   

17.  On 30 June 1967, the applicant after consulting with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf. 

18.  On 5 July 1967, the separation authority waived rehabilitation requirements and approved the discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed issuance of a General Discharge Certificate.  

19.  Special Court-Martial Order Number 25, dated 22 July 1967, shows that the unexecuted portion of the sentence to confinement at hard labor for 6 months and a forfeiture of $85.00 pay per month for 6 months promulgated in Special Court-Martial Order Number 7 on 18 February 1967, was remitted without further action.

20.  Accordingly, the applicant was discharged on 3 August 1967 under the provisions of Army Regulation 635-212 by reason of unsuitable, due to a character and passive-aggressive personality behavior disorder.  He completed 2 years, 11 months, and 28 days of active military service with 125 days of lost time due to being AWOL and in confinement.  

21.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

22.  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.

23.  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.  

24.  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.

25.  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.

26.  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.

27.  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 applicant’s contention that his discharge should be upgraded was carefully considered and determined to have merit.


2.  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.  

3.  The applicant’s record further shows his case was not 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 honorable discharge unless they have been convicted by a general court-martial or more than one special court-martial. Therefore, given the applicant’s disciplinary record does not rise to a level that supports a general discharge, his discharge is too harsh under current standards and should be upgraded to an honorable discharge in the interest of equity.  

BOARD VOTE:

_FCJ____  _CD___  _SWF____  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 showing he received an honorable discharge on 3 August 1967, in lieu of the general, under honorable conditions discharge of the same date he now holds and issuing him a new separation document that reflects these changes.  



__Frank C. Jones__
          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.