IN THE CASE OF:	

		BOARD DATE:	  18 December 2008 

		DOCKET NUMBER:  AR20080015031 


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, his general discharge be upgraded to an honorable discharge.

2.  The applicant states that when he was discharged in 1970 he was not recognized as having post-traumatic stress disorder, instead he was declared unsuitable for Army life and was discharged.

3.  The applicant does not provide any additional 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.  The applicant’s military personnel record shows he enlisted in the Regular Army on 17 October 1966 for 3 years.  He completed the necessary training and was awarded military occupational specialty 76Y (Supply Specialist).  

3.  He served for a short period of time in Europe.  On 16 February 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) during the period 10 February 1967 to 14 February 1967.

4.  He reenlisted on 15 November 1967 for 3 years.  He served in the Republic of Vietnam during the period of 9 January 1968 to 9 January 1969.

5.  A DA Form 188 (Extract Copy of Morning Report) shows that the applicant was dropped from the rolls of the Army for being AWOL from 21 October 1969 to 23 November 1969.

6.  On 30 July 1970, the applicant was advised that he was being recommended for separation under the provision of Army Regulation 635-212 (Personnel Separations) for unsuitability.

7.  The applicant's record does not contain a psychiatric evaluation by a psychiatrist or doctor in psychology.

8.  On 30 July 1970, the applicant was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel. The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.

9.  On 8 September 1970, the applicant’s commander recommended separation under the provisions of Army Regulation 635-212 for unsuitability.  The commander stated that the applicant possessed a character and behavior disorder which makes him completely unmotivated for further military service as determined by competent medical authority.  He has an emotionally unstable personality and it was believed that he would not adjust to further military service and further rehabilitative efforts and probably would be nonproductive.  The recommendation for separation was approved by the appropriate authority.
10.  On 25 September 1970, the applicant was given a General Discharge Certificate.  The DD Form 214 he was issued shows the separation designator number 264, character and behavior disorder.

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

12.  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.

13.  Army Regulation 635-200 (Personnel Separations) was revised on 1 December 1976 following settlement of a civil suit. Thereafter, the type of discharge and the character of service were 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 requests that his general discharge be upgraded to an honorable discharge.



2.  The evidence shows that the applicant was AWOL during the periods of 10 February 1967 to 14 February 1967 and 21 October 1969 to 
23 November 1969.  His commander recommended he be discharged due to unsuitability because of his character and behavior disorder.  Therefore, he was properly discharged for unsuitability due to a personality disorder and issued a General Discharge Certificate.

3.  However, the Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

4.  In this regard, since there is no evidence which shows "clear and demonstrable reasons" why a fully honorable discharge should not now be given, it would now be appropriate to grant the applicant’s request to upgrade his general discharge to an honorable discharge.

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 

	a.  voiding the general discharge now held by the applicant;

	b.  showing the applicant was separated from the service with an honorable discharge on 25 September 1970; and



	c.  that the applicant be issued an Honorable Discharge Certificate, dated 25 September 1970, in lieu of the general discharge of the same date now held by the applicant.



      ___________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)                                         AR20080015031



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ABCMR Record of Proceedings (cont)                                         AR20080015031



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