IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080019046 


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 1968 discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states he would like to exchange his DD Form 257A (General Discharge Certificate) for an honorable discharge certificate.  He states he did not fully understand the difference between an under honorable conditions discharge and an honorable discharge.  He also notes that he was also not old enough or mature enough to realize the difference. 

3.  The applicant states that he earned a master’s degree in religious education in 1986, was owner of a communications business between 1988 and 2008, and has been awarded numerous certificates and awards for service to the country and its people.

4.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant entered active duty as a Regular Army enlisted Soldier on 18 July 1967 after receiving a moral waiver to enlist.  Prior to his enlistment, the applicant had been convicted of resisting a peace officer, illegal possession of alcohol and disorderly conduct.  At the time of the applicant’s enlistment he was 17 years old.  According to the applicant’s records, his date of birth was 28 October 1949.

3.  Following successful completion of basic combat and advanced individual training the applicant was assigned to a maintenance company in Germany.  

4.  In September 1967 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.  He was punished again on 6 January 1968 for failing to go to his appointed place of duty (work formation).  In spite of the two records of nonjudicial punishment, on 
2 March 1968 he was advanced to the rank of private first class (E-3).

5.  On 18 March1968 the applicant was punished a third time under Article 15 of the UCMJ for violating a lawful general order (bringing a German National into the billets).  His punishment included reduction to pay grade E-2.

6.  On 11 April 1968 the applicant was convicted by a special court-martial of two counts of being drunk and disorderly and one count of breaking restriction.  His punishment included reduction to pay grade E-2, confinement at hard labor for two months, and forfeiture of $68.00 per month for two months.

7.  On 18 May 1968 the applicant underwent a psychiatric evaluation which concluded the applicant’s difficulties seemed to stem from a character and behavior disorder, but that he was alert, fully oriented, and showed no evidence of psychosis, neurosis or organic brain disease.  His intelligence appeared to be better than average, but his motivation for further service was nonexistent, and prospects for rehabilitation in a military setting were very poor.  The evaluation concluded the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and that he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  A psychiatrist made the diagnosis.


8.  On 12 July 1968 the applicant’s unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-212 for unsuitability.  The unit commander cited the applicant habits and traits of character manifested by repeated omission of petty offenses, a rebellious attitude and failure of all rehabilitation efforts as the basis for his recommendation. 

9.  On 13 July 1968, after consulting with counsel, the applicant acknowledged receipt of his proposed elimination from the service for unsuitability.  He elected not to make a statement in his own behalf or to have his case heard before a board of officers.  He acknowledged he understood the effects of a general discharge and that he may be ineligible for benefits as a veteran if an undesirable discharge was issued.  

10.  On 24 July 1968, the appropriate authority approved the applicant's separation by reason of unsuitability and directed the issuance of a General Discharge Certificate.   On 14 August 1968, Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey Special Orders Number 227 discharged the applicant under the provisions of Army Regulation 635-212 for unsuitability [character and behavior disorders].  He had completed 11 months and 13 days of active military service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 44 days of lost time.

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

12.  Army Regulation 635-212 (Enlisted Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  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’s contentions have been noted; however, there is no evidence that the applicant's administrative separation was not accomplished in compliance with applicable regulations then in effect.

2.  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.

3.  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.

4.  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.

5.  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.  

6.  The applicant's military personnel record contains three instances 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:

________  ________  ________  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 Dix, New Jersey Special Orders Number 227, dated 14 August 1968;

   b.  issuing orders showing the applicant was honorably discharged effective 14 August 1968;
   
   c.  issuing the applicant an Honorable Discharge Certificate, dated 14 August 1968, 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.



      _____________________
               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)                                         AR20080019046





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019046



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1