IN THE CASE OF:	  

		BOARD DATE:	        26 March 2009

		DOCKET NUMBER:  AR20080019001 


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 an upgrade of his general discharge.

2.  The applicant states that prior to his discharge in 1973, he had been on medications since 1968 for a mental condition.  He adds that he previously had a nervous breakdown at the end of his second year in Vietnam.  He also had financial, emotional, and domestic problems.  He was ultimately referred for a psychiatric evaluation that resulted in a letter being sent to his company commander indicating he (the applicant) had no rehabilitation potential.  He also adds that he has been rated as 100 percent disabled due to depression for several years.  

3.  The applicant provides a copy of the Department of Veterans Affairs (DVA) Rating Decision, dated 29 October 2008, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 7 October 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant’s records also show he served in the Republic of Vietnam from on or about 14 April 1967 to on or about 1 July 1969.  While in Vietnam, the applicant was honorably discharged on 11 October 1967 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 12 October 1967. He was also awarded MOS 76V (Equipment Storage Specialist).  

4.  Upon completion of his Vietnam tour, the applicant was reassigned to Germany on or about 8 August 1969.  While in Germany, he executed another   3-year reenlistment in the Regular Army.  He remained in Germany until on or about 11 December 1970 and was subsequently reassigned to the Republic of Vietnam where he served from on or about 15 January to 8 July 1971.  He was subsequently reassigned to Fort Gordon, GA, and attained the rank of sergeant.  He subsequently returned to Germany.

5.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 May 1971 for being absent from his appointed place of duty on 1 May 1971.  His punishment consisted of a forfeiture of $25.00 pay for 2 months.

6.  The applicant's records show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Bronze Star Medal, the Army Commendation Medal, and the Good Conduct Medal.

7.  On 13 June 1973, the applicant underwent a psychiatric evaluation at the U.S. Support District in Hessen, Germany.  The psychiatrist indicated that the applicant previously had hyperventilation attacks while in Vietnam and that he also had financial/marital problems that contributed to his inability to bring his wife and three children to Germany at the time.  The psychiatrist further indicated the applicant’s diagnosis was that of a character and behavior disorder and the recommendation was that he be discharged from the Army.

8.  On 8 July 1973, the applicant was apprehended by members of the Frankfurt Military Police for drunken driving and operating a mechanically unsafe vehicle.  

9.  On 12 July 1973, by memorandum, the applicant’s noncommissioned officer in charge (NCOIC) indicated the applicant’s performance was initially outstanding.  However, during the May-June 1973 timeframe, he either failed to report to work or failed to report to work in a timely manner on several occasions.

10.  On 12 July 1973, in a witness statement, the applicant’s immediate commander indicated that in or around May 1973, the applicant professed heavy indebtedness, substantiated by correspondence from creditors, and multiple family problems.  The commander also stated that during subsequent discussions with the applicant and his supervisor, it became increasingly evident that the applicant was developing extreme frustration with his duties and his associates and that he was repeatedly absent from his appointed place of duty.  He also added that the applicant failed to correct his behavior despite counseling by him, the unit first sergeant, and the applicant’s first line supervisor. 

11.  On 17 July 1973, the applicant’s immediate commander notified the applicant of his intent to eliminate the applicant from the Army under the provisions of chapter 13, Army Regulation (AR) 635-200 by reason of unsuitability.  Specifically, the immediate commander cited the applicant’s character and behavior disorder, coupled with poor frustration tolerance and severe anomie, as portrayed by his inability to satisfactorily perform assigned duties and effectively socialize in a military environment.  

12.  On 17 July 1973, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of AR 635-200.  He further waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by counsel, and elected to submit a statement.  In his statement, the applicant indicated that he had suffered from nervousness for several years and his issues were compounded by financial and marital challenges.  Nevertheless, he wanted a decent discharge to further his education and leave the Army with pride.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

13.  On 17 July 1973, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of AR 635-200 by reason of unsuitability.

14.  On 2 August 1973, the applicant’s intermediate commander recommended approval of the elimination action.

15.  On 17 August 1973, the separation authority approved the applicant’s discharge under the provisions of paragraph 13-5b of AR 635-200 by reason of unsuitability and directed he be furnished a General Discharge Certificate.  The applicant was discharged on 5 September 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 6 years, 10 months, and 29 days of creditable active military service.  He was assigned a Separation Program Number (SPN) code of 264.

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

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unsuitability.

18.  AR 635-200 (Personnel Separations) which superseded AR 635-212, in pertinent part set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual under chapter 13 for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such not to warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  A general or honorable discharge was considered appropriate.  

19.  AR 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 (previously known as a character and behavior 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’s contends that his general discharge should be upgraded.

2.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

3.  Nevertheless, it now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the referenced Army memoranda in paragraph 19, above.

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.  showing the individual concerned was separated from the service with an Honorable Discharge Certificate on 5 September 1973; and
	b.  issuing the individual an honorable discharge from the Regular Army, dated 5 September 1973, in lieu of the general discharge of the same date now held by him.



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      _______ _   _______   ___
               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)                                         AR20080019001



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ABCMR Record of Proceedings (cont)                                         AR20080019001



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