IN THE CASE OF:	  

		BOARD DATE:	        31 JULY 2008

		DOCKET NUMBER:  AR20080008941 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was discharged for unsuitability due to a personality disorder and should have received an honorable discharge.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision showing that he was awarded a 70% disability rating for Bipolar Psychotic Disorder effective 27 August 2003 and a copy of his DD Form 214.

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 was born on 19 November 1946 and enlisted in Newark, New Jersey on 11 February 1966 for a period of 3 years and training as an equipment storage specialist.

3.  He completed his basic training at Fort Dix, New Jersey and his advanced individual training at Fort Belvoir, Virginia before being transferred to Fort Lee, Virginia for assignment to the 541st Combat Support Company as an engineer supply parts specialist on 11 July 1966.

4.  On 19 September 1966, nonjudicial punishment (NJP) was imposed against the applicant for being absent without authority from his unit from 17 September to 18 September 1966.  His punishment consisted of extra duty.

5.  The applicant’s unit was alerted for a permanent change of station to Okinawa, Japan.  He subsequently departed on authorized ordinary leave in December 1966.  He was arrested by civil authorities in New Brunswick, New Jersey on 18 December 1966 for drunk driving and resisting arrest.  The facts and circumstances surrounding that arrest are not present in the available records.  However, the applicant missed movement (his port call) with his unit and had to join his unit in Okinawa on 11 February 1967.

6.  On 16 February 1967, NJP was imposed against the applicant due to his conviction by civil court.  He was reduced to the pay grade of E-2 effective 16 January 1967.

7.  On 10 August 1967, NJP was imposed against the applicant for being absent from his unit without authority on 9 August 1967.  His punishment consisted of an oral admonition, extra duty, and restriction.

8.  On 26 September 1967, the applicant underwent a psychiatric examination and was diagnosed as having a passive-aggressive personality.  The examining psychiatrist recommended that the applicant be considered for administrative separation by reason of unsuitability due to his severe character disorder.

9.  On 29 September 1967, the applicant’s commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He also cited the applicant’s disciplinary record and his unsatisfactory conduct and performance of duty as a basis for his recommendation.



10.  The applicant’s chain of command issued sworn statements to the effect that since the applicant joined the unit at Fort Lee, he had a tendency to avoid work at every opportunity, was frequently late for formations and work call, that he repeatedly had uniform violations, that he slept during duty hours, that he had to be supervised at all times, and that his fellow Soldiers did not want to work with him because he was lazy.  All of the members of his chain of command deemed him a liability to the Army.

11.  On 3 October 1967, after consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  On 17 October 1967, the appropriate authority approved the recommendation for separation and directed that he be furnished a General Discharge Certificate.

13.  Accordingly, the applicant was discharged under honorable conditions on 2 November 1967, under the provisions of Army Regulation 635-212, for unsuitability due to a character and behavior disorder.  He had served 1 year, 8 months, and 22 days of total active service and at the time of his discharge he acknowledged by his signature that he had been informed of the procedures to request a review of his discharge by the Army Discharge Review Board (ADRB).

14.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability or unfitness.  It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability, based on a diagnosed character and behavior disorder.  Although a general discharge was authorized, an undesirable discharge was normally considered appropriate.

16.  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 a 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 upgrades 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 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 evidence of records shows that the applicant’s administrative separation on 2 November 1967 was accomplished in accordance with regulations then in effect.

2.  While the applicant’s behavior is not condoned by the Board and his service was somewhat less than acceptable, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently. 

3.  Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
  
BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 he was separated from the service with an Honorable Discharge Certificate on 2 November 1967; and

	b.  issuing to him an Honorable Discharge Certificate, dated 2 November 1967, in lieu of the general discharge of the same date held by him.



      ___        XXX                ___
                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)                                         AR20080008941



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ABCMR Record of Proceedings (cont)                                         AR20080008941



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