IN THE CASE OF:	  

		BOARD DATE:	       3 MARCH 2009

		DOCKET NUMBER:  AR20080019838 


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 that at the time he accepted the general discharge he was under duress having just received an Article 15 that morning and was being threatened with stockade time for any violations.

3.  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 enlisted in the Regular Army and entered active duty on 30 September 1963 after receiving a waiver for a variety of traffic violations.  While undergoing training at Fort Dix, New Jersey, he was convicted by a summary court-martial of being absent without leave (AWOL) from 2 January to 8 January 1964.  In spite of the court-martial, he successfully completed training and in April 1964 was assigned to the United States Army Southern European Task Force in Italy as a cook.

3.  Between May and September 1964 the applicant was punished four times under Article 15 of the Uniform Code of Military Justice (UCMJ) for offenses including failure to report to his appointed place of duty, public urination, and absenting himself from his unit without proper authority.

4.  A Report of Psychiatric Evaluation, dated 4 September 1964, found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, had the mental capacity to understand and participate in board proceedings, and that there was no evidence of any psychiatric disorder.  The evaluator, an Army medical doctor, recommended the applicant be separated from the service under “whatever administrative action the Command deems advisable.”

5.  On 12 September 1964 the applicant acknowledged his commander had initiated actions to separate him under the provisions of Army Regulation
635-209 (Personnel Separation – Discharge - Unsuitability).  The applicant did not request counsel, waived his rights to a hearing by a Board of Officers, and did not submit a statement in his own behalf.

6.  On 12 October 1964 the applicant was punished under Article 15 of the UCMJ for breaking restriction.  On that same day, the applicant’s commander recommended to the Commanding Officer, U.S. Army Garrison, Verona, Italy that the applicant be separated under the provisions of Army Regulation 635-209.  The unit commander stated the applicant had been cited 6 times for offenses ranging from AWOL to indecent exposure, that he had absolutely no regard or respect for military law, and that he did not respond to counseling.

7.  On 2 November 1964, the applicant was given a General Discharge Certificate.  The DD Form 214 he was issued shows the Separation Program Number (SPN) 264, character and behavior disorder.  He had completed a total of 1 year and 3 days of total active service.



8.  On 21 January 1969 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

9.  Army Regulation 635-209, then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined, through proper board action, that an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier he will be discharged.  This regulation provided, in pertinent part, that a Soldier was to be discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such personality patterns when appropriate on the basis of adjustment, behavior or performance in service.  Paragraph 8 directed that an individual discharged for unsuitability would be furnished a General Discharge Certificate.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 (formerly known as 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. 

11.  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 evidence shows the applicant was involved in incidents which brought discredit to the U.S. Army and that he did not respond to counseling or disciplinary actions.  Therefore, he was properly discharged under the provisions of Army Regulation 635-209.

2.  Although the evidence does confirm the applicant was punished under Article 15 of the UCMJ on the same day his command recommended to the Commanding Officer, U.S. Army Garrison, Verona, Italy that the applicant be separated, there is no evidence the applicant was under duress or that he had been told he was subject to confinement for any violations.  The applicant was afforded the opportunity to consult with counsel and he waived his rights.

3.  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 the applicant’s SPN indicates the discharge was declared to have resulted from a character and behavior disorder, but he was not diagnosed by a physician trained in psychiatry as having a character and behavior disorder, an injustice has been created and as such, it would now be appropriate to grant the applicant’s request.

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 2 November 1964; and



	c.  issuing the applicant an Honorable Discharge Certificate, dated
2 November 1964, in lieu of the general discharge of the same date now held by the applicant.



      __________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)                                         AR20080019838



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ABCMR Record of Proceedings (cont)                                         AR20080019838



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