IN THE CASE OF:	

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080006383 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, his discharge was unjust due to a medical condition.  

3.  The applicant provides a self-authored statement, Department of Veterans Affairs (VA) Rating Decision, and separation document (DD Form 214) in support of 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 record shows he enlisted in the Regular Army and entered active duty on 4 April 1968.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was promoted to the rank of private/E-2 on 4 August 1968, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 25 July 1969, for being disrespectful in language toward a noncommissioned officer (NCO) who was in the execution of his duties.  His punishment for this offense was a reduction to private/E-1 (PV1).  The applicant had no record of court-martial convictions during his active duty tenure.    

5.  On 11 July 1969, a psychiatric evaluation was completed on the applicant.  The examining physician found the applicant suffered from a severe character and behavior disorder manifested by repeated conflicts with his environment and especially with authority figures.  

6.  The applicant's unit commander notified the applicant he contemplated recommending the applicant's separation under the provisions of Army Regulation 635-212, for unsuitability, based on the applicant's character and behavior disorder.

7.  The applicant consulted legal counsel and was advised of the basis for his contemplated separation for unsuitability, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.  

8.  On 23 September 1969, the applicant’s unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  The unit commander cited the applicant’s character and behavior disorder as the basis for taking the action.  In his recommendation, the unit commander confirmed that the applicant had accepted NJP once and that he had no record of court-martial convictions.   

9.  On 24 September 1969, the separation authority approved the applicant’s discharge under the provisions of paragraph 6b(2), Army Regulation 635-212, by reason of unsuitability (character and behavior disorder), and directed that the applicant receive a GD.  On 29 September 1969, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he completed a total of 1 year, 5 months, and 19 days of creditable active military service and accrued 7 days of time lost due to being absent without leave (AWOL).  This document further shows the applicant was assigned a Separation Program Number (SPN) of 264, which reflected a character and behavior disorder separation.  

10.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

11.  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.

12.  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.  

13. On 14 January 1977, a Department of the Army Memorandum 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, 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.

14.  Department of Defense Instruction (DODI) 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. Enclosure provides discharge review standards and states, in pertinent part, that a discharge will be deemed to be inequitable if in the course of review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from those currently applicable to discharges of the type under consideration and there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.  

15.  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.

16.  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 evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  It further shows that his separation processing was accomplished in accordance with the applicable regulation in effect at the time. 

2.  However, under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by a general court-martial or by more than one special courts-martial are "clear and demonstrable reasons" which would justify a less than fully honorable discharge under current regulatory standards.  
3.  In this case, given the applicant had no record of court-martial convictions during his active duty tenure, his disciplinary record does not rise to the level that supports a GD.  Therefore, his discharge is too harsh under current standards and it would be appropriate, in the interest of equity, to upgrade it to an HD at this time.  

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 by showing he received an honorable discharge on 29 September 1969, in lieu of the general, under honorable conditions discharge of the same date he now holds; by showing the authority for his separation was paragraph 6b(2), Army Regulation 635-212; and issuing him a new separation document that reflects these changes.



      ________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080006383



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ABCMR Record of Proceedings (cont)                                         AR20080006383



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