RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070016180 


	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 B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 discharge under honorable conditions be upgraded to honorable.   

2.  The applicant states, in effect, that he was not adjusting to the military.  He was denied leave to see his mother who was in the hospital after suffering a heart attack.  He was given some papers and told to sign.  He thought they were leave papers to allow him to go see his mother.  He had no idea what he was signing.  He further states that he tried to get back in the Army 30 years ago but was given the run-a-round.  He would like to have his benefits and is still not too old to serve.

3.  The applicant provides no supporting documentation.

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 August 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 36K1O (Field Wireman).

3.  On 25 February 1967, the applicant was assigned for duty as a field wireman with the 2nd Squadron, 1st Cavalry Brigade, 2nd Armored Division, Fort Hood, Texas.

4.  On 31 March 1967, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice, for stealing a camera from another Soldier.  The punishment included reduction to private, pay grade E-1 and a forfeiture of $45.00 pay per month for 1 month.  The applicant did not appeal the punishment. 

5.  On 11 June 1967, the applicant was arrested by the Austin Police Department and charged with stealing an automobile.  There is no available record of the disposition of this case.

6.  Records show that the applicant was absent without leave (AWOL) from 
10 to 19 June 1967.  There is no available record of any punishment that he may have received for this misconduct.

7.  On 3 July 1967, the applicant accepted NJP for failure to obey a lawful general order by being in an off-limits area.  The punishment included a forfeiture of $20.00 pay per month for 1 month; and 14 days restriction and extra duty.  The applicant did not appeal the punishment.

8.  On 20 July 1967, 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 had repeated incidents with both civilian and military authorities for disobeying post regulations and theft. Despite continued attempts at rehabilitation he continued to pursue a lackadaisical attitude and displayed sub-standard conduct and efficiency. 
 
9.  On 26 July 1967, the applicant consulted with counsel, and elected not to make a statement in his own behalf and waived representation by counsel.

10.  On 3 August 1967, the applicant underwent a psychiatric evaluation.  He was diagnosed with an inadequate personality, in that he lacked the general personality skills to satisfactorily adjust to the military service.  The applicant's mental status examination revealed no evidence of a psychotic or neurotic illness.  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental ability to understand and to participate in board proceedings.    

11.  On 11 August 1967, the appropriate authority approved the recommendation for discharge and directed that he be issued an General Discharge Certificate.  

12.  Accordingly, he was discharged on 14 September 1967 under honorable conditions.  He had completed 1 year and 25 days of creditable active duty and had 10 days of lost time due to AWOL.
 
13.  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.
14.  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.

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

2.  Subsequently, historically significant administrative decisions imposed specific criteria to be retroactively 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.   

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

BOARD VOTE:

__JBG __  __RSV __  __DWS _  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 14 September 1967;

b.  issuing to him an Honorable Discharge Certificate, dated 
14 September 1967, in lieu of the general discharge of the same date now held by him; and

c.  issuing him a new DD Form 214, effective 14 September 1967, showing his characterization of service as honorable.







__   James B. Gunlicks __
          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.