IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090001084 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant essentially contends that he was not informed that he could contest his discharge.  He also contends that he was using drugs at the time but was not given proper treatment for his drug issues prior to being discharged.  In an attachment, The Veteran's Self-Help Guide to Discharge Upgrading, the applicant raised the following issues:

	a.  there was no psychiatric evaluation conducted as required by the regulations and Lipsman v. Brown;

	b.  there was no diagnosis of personality disorder as required by the discharge regulations that applied to his case;

	c.  his psychiatric evaluation was not done by a psychiatrist or a psychiatrically-trained doctor as required by regulations and Lipsman v. Brown;

	d.  charges were never preferred, and he was not properly counseled about his discharge;
   
   e.  he was close to finishing his tour, so it was unfair to give him a bad discharge;

	f.  his record of absence without leave/unexcused absences indicated only minor or isolated offenses;

	g.  his ability to serve was impaired by his youth and immaturity;

	h.  personal problems and his use of drugs impaired his ability to serve;

	i.  his discharge was based on many offenses, but they were mostly only minor offenses;

	j.  he was not properly notified of his right to submit statements; and

	k.  he did not have the right kind of counsel to consult with about deciding whether to accept the board.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and The Veteran's Self-Help Guide to Discharge Upgrading 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's military records show that he enlisted in the Regular Army on 18 September 1969 for a period of 3 years.  He completed initial entry training and was awarded military occupational specialty 76Q (Special Purpose Materiel Supply Specialist).  However, prior to completing initial entry training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 February 1970 for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $15.00 pay per month for 1 month and 7 days of extra duty.

3.  The applicant departed for the Republic of Vietnam 3 March 1970 and was initially assigned to the 73rd Engineer Company.

4.  On 11 August 1970, the applicant accepted NJP under Article 15 of the UCMJ for violating a lawful general regulation by being in an off-limits area.  His punishment consisted of forfeiture of $20.00 pay per month for 1 month.  The applicant was reassigned to Company D, 864th Engineer Battalion on this same date.

5.  On 17 August 1970, the applicant accepted NJP under Article 15 of the UCMJ for disobeying an order put out by his battalion commander that the motor pool area was off limits after 1900 hours and wrongfully appropriating the use of a 
5-ton dump truck of a value of about $20,000.00 without a license.  His punishment consisted of forfeiture of $15.00 pay per month for 1 month and extra duty for 7 days.

6.  On 24 August 1970, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 1930 hours, 19 August 1970, and remaining so absent until on or about 0700 hours, 20 August 1970.  His punishment consisted of a suspended reduction in rank and pay grade from private first class/E-3 to private/E-2, which appears to have been remitted without action, forfeiture of $25.00 pay per month for 2 months, and extra duty for 10 days.

7.  Although all of the facts and circumstances surrounding the applicant's discharge, i.e., his complete separation packet, are not in his military records, the applicant was advised by his commanding officer on 11 November 1970 that proceedings to discharge him from the military service under the provisions of Army Regulation 635-212 (Discharge for Unsuitability) had been initiated.  He cited as the basis for his recommendation that the applicant had served under different officers and noncommissioned officers and in each instance his performance had been unsatisfactory.  He also stated that his military supervisors and the psychiatric examiner all agree that further rehabilitation efforts would be useless.  The applicant's first sergeant provided a statement in which he opined that the applicant had a negative attitude towards authority and order that are given to him that it is his duty to obey.  He further opined that drugs and pot appear to be the problem for discipline.

8.  He was advised of his rights, which included presenting his case before a board of officers, submitting statements in his own behalf, representation by counsel, and the right to waive the aforementioned rights in writing.  The applicant acknowledged the notification had been read to him and he acknowledged receipt of one copy of the proceedings on 19 November 1970.  In the available records, it shows that a report of psychiatric evaluation, report of medical examination, and report of medical history were forwarded as part of his separation packet to the proper separation authority.

9.  On 19 November 1970, the proper separation authority approved the applicant's discharge for unsuitability due to a character and behavior disorder, under the provisions of Army Regulation 635-212 and directed that the applicant be issued a DD Form 257A (General Discharge Certificate).  On 24 November 1970, the applicant returned to the continental United States and was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him shows that he only completed 1 year, 2 months, and 7 days of his 3-year enlistment.

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

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided, in pertinent part, for discharge due to unsuitability because of inaptitude, character and behavior disorders, and 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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  Army Regulation 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 a 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 upgrades 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 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.  

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:
1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contentions that no psychiatric evaluation was conducted and/or that the psychiatric evaluation was not done by a psychiatrist or a psychiatrically-trained doctor was considered, but found to lack merit.  The available separation proceedings clearly show that a psychiatric evaluation was conducted on the applicant and he did not provide any evidence to support his claim that his psychiatric evaluation was not done by a psychiatrist or a psychiatrically-trained doctor.

3.  The applicant's contention that there was no diagnosis of personality disorder as required by discharge regulations was noted; however, as the applicant was discharged for unsuitability because of a personality disorder and he has failed to show otherwise, it must be presumed, in the absence of evidence to the contrary that what the Army did at the time was correct.

4.  The applicant's contention that charges were never preferred was also noted; however, as he was not discharged under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), this contention is also irrelevant to this case.  Additionally, while the applicant contends that he was close to finishing his tour, as he only completed 1 year, 2 months, and 7 days of his 3-year enlistment, a case could hardly be made that he was close to finishing his tour.

5.  The applicant's contention that he was young and immature at the time was also considered.  Records show that the applicant was over 18 years of age at the time of his enlistment and that he was over 19 years of age at the time of the majority of his offenses.  However, the applicant successfully completed initial entry training and there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  The applicant's contentions that he was not properly notified of his right to submit statements, that he did not have the right kind of counsel to consult with about deciding whether to accept the board, and that he was not properly counseled about his discharge was also considered, but found to lack merit.  The applicant was clearly advised of his right to submit statements in his own behalf and the applicant failed to provide any evidence to support his claim that he did not have the right kind of counsel or was not properly counseled about his discharge.

7.  The fact that the applicant appears to have been abusing drugs and marijuana at the time was noted, as was his contention that he was not given proper treatment for his drug issues prior to being discharged.  However, the applicant was not punished for his drug use and there is no evidence which shows that the applicant ever requested assistance for any drug problem he was having at the time.

8.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  Although the complete facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability based upon his record of indiscipline.  As he did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.
10.  While the applicant’s command determined that he should be issued a general discharge, based on his extensive record of indiscipline in less than 15 months of service, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________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)                                         AR20090001084



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ABCMR Record of Proceedings (cont)                                         AR20090001084



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