IN THE CASE OF:	

		BOARD DATE:	       13 January 2009

		DOCKET NUMBER:  AR20080016836 


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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he was mistreated by a sergeant while he was in Vietnam.  He describes instances in which the sergeant threatened him regarding an earring he had in his ear.  He states he was worried about his abandoned child back home and asked this sergeant to find out some information for him from the home front.  He alleges that this sergeant told him to "shut up" or he would send him to a place where he could get killed.  He also alleges that this sergeant lied on him by saying he had "refused" to do what he was told.  He states that this sergeant destroyed his "esprit de corps" [morale].  He further states that he always did what he was told to do.  He just wanted to get information about his abandoned child back home.  He finally gave up and did what he could to get back home.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 28 March 1969 for a period of three years.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 31M (radio relay and carrier attendant).  His highest grade attained was private first class (PFC)/E-3.  He was assigned to Vietnam in February 1970.  

3.  On 9 June 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by being out of uniform by wearing his fatigue jacket unbuttoned and his fatigue pants unbloused.  

4.  On 14 September 1970, the applicant was convicted, pursuant to his pleas, by a special court-martial (SPCM) of the following offenses: (1) for wrongfully appearing at the Flagstaff Area, Camp McDermott, Nha Trang, Vietnam, without his fatigue uniform trousers bloused; (2) two specifications of disobeying a lawful order from his superior noncommissioned officer (NCO), to remove an earring from his ear and to police the area between two buildings; and (3) four specifications of being absent from his appointed place of duty.  He was sentenced to a reduction to private (PV2)/E-2 and restriction for 45 days.  

5.  On 17 September 1970, the applicant underwent a psychiatric examination and was diagnosed as having emotional instability reaction, chronic, moderate, manifested by passive-aggressive behavior, defiance of authority, history of heroin addiction, and other drug use.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  

6.  The applicant was barred from reenlistment on 26 September 1970.  The company commander indicated that the applicant continued to shirk duty, was disrespectful to officers and senior noncommissioned officers, and habitually committed minor offenses.  

7.  On an unknown date, the company commander notified the applicant of pending separation action under the provisions of Army Regulation 635-212 for unsuitability - character and behavior disorders.  The applicant was advised of his rights.  He consulted with legal counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.
8.  The company commander recommended that the applicant be required to appear before a board of officers under the provisions of Army Regulation 
635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service.  The company commander recommended discharge because of the applicant's habits and traits of character manifested by repeated commission of offenses, habitual shirking, and disregard of authority.  

9.  On 20 October 1970, the separation authority approved the separation action and directed issuance of a General Discharge Certificate.

10.  On 23 October 1970, Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington Special Orders Number 296 discharged the applicant under the provisions of Army Regulation 635-212 for unsuitability [character and behavior disorders].  He had completed 1 year, 6 months, and 21 days of active military service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 4 days of lost time.

11.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board 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 – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It 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. 


14.  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 contended that he was mistreated by a sergeant while he was in Vietnam.  However, there is no evidence and the applicant has provided no evidence, to substantiate his claims.  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.

3.  The applicant was advised of the effects of a general discharge.  The applicant was afforded the opportunity to consult with counsel and submit statements in his own behalf, but he declined to do so.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

5.  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.

6.  The Nelson Memorandum 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.  

7.  The applicant's military personnel record contains one instance of NJP and one conviction by an SPCM.  However, his record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.

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.  revoking Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington Special Orders Number 296, dated 23 October 1970;

   b.  issuing orders showing the applicant was honorably discharged effective 23 October 1970;
   
   c.  issuing the applicant an Honorable Discharge Certificate, dated 23 October 1970, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   d.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      ________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)                                         AR20080016836



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016836



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1