RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	
  	DOCKET NUMBER:  AR20080000049 


	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.









      The following members, a quorum, were present:













	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, upgrade of his general discharge to honorable. 

2.  The applicant states, in effect, that he believes his discharge should be changed due to service-connection granted for schizophrenia (mental illness).  He also states his mental illness was caused or aggravated during his service and homelessness.  For many years he did not know of any benefits or the help available.  In effect, his suffering from schizophrenia and mood disorder has altered his life and the things he needed to do.  

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) along with his 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's military records show he enlisted in the Regular Army, in pay grade E-1, on 30 April 1973, for 4 years.  He completed basic and advanced training and was assigned military occupational specialty 13B, field artillery crewman.  He was promoted to pay grade E-2 on 30 August 1973.

3.  On 26 October 1973, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from his commanding officer and his superior noncommissioned officer on 24 October 1973.  The punishment imposed included forfeiture of $50.00 per month for one month, 14 days extra duty, and 14 days restriction.  

4.  On 4 December 1973, the applicant accepted punishment under Article 15, UCMJ, for failing to be at his appointed place of duty at the appointed time on 3 and on 5 December 1973.  The punishment imposed included forfeiture of $50.00 per month for one month, 14 days extra duty, and 14 days restriction.  

5.  On the same date, the applicant submitted a statement appealing the punishment.  He stated that he was given a fine of $50.00, 14 days extra duty, and 14 days restriction.  He felt he could accept the fine, but not 14 days extra duty and 14 days restriction.  Fayetteville, North Carolina, was his home, his mother was there and he had to pull all the weight.  He had responsibilities at home and personal things that he must ensure everyday.  He was on restriction before and it made his family life and social life fall apart.  He could not stand back and watch it fall down again.  He also stated that he needed his freedom; without it he could never make it in the Army or anywhere else.  

6.  The applicant's appeal was denied on 14 December 1973.

7.  On 26 December 1973, the applicant accepted punishment under Article 15, UCMJ, for failing to be at his appointed place of duty on 19 December and 21 December 1973.  The punishment imposed included forfeiture of $80.00 per month for one month, 14 days extra duty, and 14 days restriction.

8.  On 27 March 1974, the applicant was convicted by special court-martial of one specification of willfully disobeying a law order on 4 January 1974; seven specifications of failing to go at the time prescribed to his appointed place of duty on 23, 24, 25, 26, 27, and 28 December 1973; and two specification of absenting himself from his unit from 29 December 1973 to 3 January 1974 and from 4 January 1974 to 16 January 1974.  The approved sentence was a forfeiture of $215.00 pay per month for two months and confinement at hard labor for 45 days.  The sentence was approved on 15 April 1974.  

9.  The applicant was reduced to pay grade E-1 on 15 April 1974.

10.  A Statement of Social Work Evaluation, dated 3 May 1974, shows that the applicant was evaluated on that date and the evaluation revealed that the applicant's military behavior was consistent with authority conflicts he experienced in school and with civilian law enforcement prior to entering active duty.  At the present time, the applicant's potential for constructive behavioral or attitudinal change was seen as being almost non-existent.  No evidence of psychosis, neurosis, or other disorders which would require referral for 

psychiatric treatment was found.  The social worker stated that he believed the applicant would not adjust to the military setting, that his potential for return to duty was minimal, and further rehabilitative efforts would prove non-productive.   The applicant was cleared for participation in board proceedings.  It was recommended he be separated under the provisions of Army Regulation 635-200, Chapter 13, Unsuitability, Character and Behavior Disorder.

11.  On 21 May 1974, the applicant's commander requested action to separate the applicant under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5.  The unit commander recommended the applicant be discharged from the service as unsuitable due to a diagnosed character and behavior disorder.  Discharge for unfitness was not deemed appropriate due to the Soldier's inability to assimilate to the military environment.  The applicant's records reflected that his highest rank had been E-2, he had one court-martial, and three punishments under Article 15 of the UCMJ.  He also stated that the applicant had received considerable counseling since his arrival by the social workers, leadership team, and unit cadre.  The individual had not responded favorably to that counseling nor from duties given him.  The individual did not meet the criteria for further rehabilitation attempts.

12.  On the same day, the applicant, after consulting with counsel, acknowledged his unit commander’s notification and voluntarily consented to the discharge.  He waived his right to counsel and to have his case heard before a board of officers. He also acknowledged that he understood that he might be issued a general discharge under honorable conditions.  He also elected not to submit a statement in his own behalf.

13.  On 24 May 1974, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 13, and specified the issuance of a General Discharge Certificate.  

14.  The applicant was discharged from active duty, in pay grade E-1, on 29 May 1974, under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5b(2), for SPD: 24 – Unsuitability – Character and Behavior Disorder, with a general, under honorable conditions, discharge.  He was credited with 9 months and 27 days total active service and 93 days lost time due to absent without leave and confinement.  

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

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

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 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 application 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 under the provisions of Army Regulation 635-200 by reason of Unsuitability, Character and Behavior Disorder, was not accomplished in compliance with applicable regulation in effect at the time.

2.  The evidence shows the applicant received counseling pertaining to his job performance.  He had one court-martial and three punishments under Article 15 of the UCMJ, for the offenses of failing to go to his appointed place of duty, disobeying a lawful order, and absenting himself from his unit.  The applicant's commander stated that he had not responded favorably to counseling nor from duties given him and did not meet the criteria for further rehabilitation attempts. 

3.  The applicant was evaluated by a social worker on 3 May 1974, and it was recommended he be separated under the provisions of Army Regulation 635-200, Chapter 13, Unsuitability, Character and Behavior Disorder.  The applicant's commander recommended he be discharged from the service as unsuitable due to a diagnosed character and behavior disorder because discharge for unfitness was not deemed appropriate due to the Soldier's inability to assimilate to the military environment.  

4.  While the applicant's actions of misconduct can not be condoned, it should be noted that this type of discharge requires a character and behavior personality disorder to be evaluated by a trained medical doctor in psychiatry or licensed clinical psychologist.  Since the evaluation was accomplished by a social worker, the discharge was improper and it would now be in the interest of justice to upgrade the characterization of service to honorable and the reason for discharge as Secretarial Authority.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

__x_____  ___x _  _x____  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:

	a.  by showing the applicant was separated from the service with an Honorable Discharge by Secretarial Authority on 29 May 1974; and 

	b.  by issuing him an Honorable Discharge Certificate from the United States Army, dated 29 May 1974, in lieu of the General Discharge Certificate of the same date now held by him.




      ____x      _______
                CHAIRPERSON



ABCMR Record of Proceedings (cont)                                         AR20080000049


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508