IN THE CASE OF:	  

		BOARD DATE:	        2 JUNE 2009

		DOCKET NUMBER:  AR20090000291 


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 that his discharge should be upgraded to honorable because he was suffering from post-traumatic stress disorder (PTSD).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a self-authored statement, and a Department of Veterans Affairs (VA) rating decision in support of this 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 February 1970.  He completed basic combat and advance individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 21 September 1970 to 17 July 1971.

3.  On 1 September 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.

4.  On 14 September 1971, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his unit from 7 September 1971 to 13 September 1971.

5.  On 8 February 1972, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his unit from 21 January 1972 to 7 February 1972.

6.  On 14 March 1972, the applicant accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.

7.  On 6 May 1972, the company commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability) by reason of unsuitability.   

8.  On 8 May 1972, the applicant was advised by counsel of the basis for the contemplated separation action.  He requested consideration of his case by a board of officers.  He also requested personal appearance before the board and representation by counsel.  He elected not to submit a statement in his own behalf.  He further requested representation by a CPT D__ D. D____.

9.  On 5 June 1972, the applicant accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.

10.  On 16 June 1972, the applicant completed a mental status evaluation and was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He was diagnosed with a character and behavior disorder.  It was further recommended that the applicant be expeditiously separated from the service under the provisions of Army Regulation 635-212.

11.  A board convened on 22 June 1972.  After considering all the evidence before it, the board found the applicant undesirable for further retention in the military service because of character and behavior disorders manifested by repeated commission of minor offenses.   The board recommended the issuance of a General Discharge Certificate.

12.  On 29 June 1972, the appropriate authority approved the recommendation and directed issuance of a General Discharge Certificate.

13.  On 13 July 1972, the applicant was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation
635-212, for unsuitability.  He completed 2 years, 3 months, and 22 days of creditable active service and had 24 days of lost time.

14.  The applicant provided a self-authored statement which essentially states that his discharge should be upgraded because of the mental issues he was facing at the time of his separation.

15.  The VA rating decision provided by the applicant shows he was granted service-connected disability for post-traumatic stress disorder.

16.  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.

17.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual 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 and he met retention medical standards.  Unsuitability included inaptitude, character and behavior disorders, apathy, alcoholism, and enuresis.  A general or honorable discharge was considered appropriate.

18.  Army Regulation 635-200 is the general regulation that governs 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 was 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 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.

19.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation on 13 July 1972 was accomplished in accordance with regulations in effect at the time.

2.  However, during processing for discharge, the applicant was diagnosed with a character and behavior disorder and he was discharged for unsuitability by reason of a character and behavior disorder.

3.  In view of the foregoing, the general discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge for unsuitability which became effective in June 1976.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards.

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.  amending Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Special Orders Number 192, dated 10 July 1982, pertaining to the applicant, as reads "Type of discharge: General – DD Form 257A Authorized" to read "Type of discharge: Honorable – DD Form 256A Authorized";
   
   b.  issuing the applicant an Honorable Discharge Certificate, dated 13 July 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   c.  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)                                         AR20090000291



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ABCMR Record of Proceedings (cont)                                         AR20090000291



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