IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090001108 


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 states that he is proud of his military service and loved the military, but that the reason for his discharge was due to marital problems when his wife left him and took their two children with her.  He states that he was devastated and did not know how to handle the situation, and that he did a very foolish thing by getting and staying drunk until he was picked up by the military.  He further contends that this incident made him grow up and accept responsibility and asks that he be granted an upgrade to his discharge based on his prior record of excellence.

3.  The applicant provides a 25 November 2008 self-authored letter and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 was inducted into the Army of the United States on 7 August 1952 and was honorably released from active duty on 6 August 1954 and transferred to the United States Army Reserve.  On 7 September 1955, he enlisted in the Regular Army for a period of 6 years.  After briefly serving at Fort Bragg, North Carolina, he was reassigned to Sandia Base, New Mexico, in March 1956.

3.  Section 6 (Time Lost) of the applicant's DA Form 24 (Service Record) shows that the applicant went absent without leave (AWOL) from 6 September 1957 through 8 September 1957.

4.  On 29 November 1957, a psychiatric evaluation was conducted on the applicant and the psychiatrist who performed this examination essentially opined that the applicant was extremely poorly motivated for further military service, that he was not a suitable candidate for rehabilitative efforts, and that he should be presented to a Board of Officers for consideration for separation from the service under the provisions of Army Regulation 635-208 (Unfitness - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) or Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).  This psychiatrist also stated that the applicant expressed his great dislike for the military service and indicated a marked desire to return to civilian life.  Additionally, he stated that the applicant was considered to be so far free from mental disease, defect, and/or derangement as to be able to distinguish right from wrong, adhere to the right, and to cooperate intelligently in his own defense.  Further, he stated that the applicant was considered to be mentally competent and responsible for his actions and did not appear to have any condition which would warrant his appearance before a medical board.  It should be noted that this psychiatric evaluation also stated that the applicant's first marriage in August 1953 ended in divorce 4 years later and that there were two children as a result of this marriage.  It also stated that the applicant married another woman in October 1957 and that this marriage was going very well and that the applicant expected it to last.

5.  Also on 29 November 1957, the applicant's commanding officer recommended that he be discharged from the service under the provisions of Army Regulation 635-209 for unsuitability.  He indicated that the applicant had been a repeated petty offender and that he had a record of five unit punishments for failure to repair for duty.  He also stated that there had been letters of indebtedness from three civilian firms for his failure to pay debts and six complaints of him writing checks without sufficient funds.  Additionally, he stated that the applicant was arrested in November 1957 by civilian authorities for speeding and writing worthless checks.  The applicant acknowledged that he had been advised of his right to elect counsel on this date as well, but indicated that he did not desire a counsel to be appointed in his case.

6.  On 4 December 1957, the applicant was confined by civil authorities in Albuquerque, New Mexico, and he was convicted of writing worthless checks and sentenced to 90 days of confinement, which was suspended.

7.  On 13 December 1957, the applicant was notified that he was to appear before a Board of Officers convened under the provisions of Army Regulation 635-209 and that the specific allegations or questions to be investigated were that he gave evidence of unsuitability for further retention in the military service due to character or behavior disorders.  He was also advised that he was entitled to counsel of his own selection if reasonably available, and that if counsel of his own choosing was not available, competent counsel would be furnished to him by the convening authority if he so desired.  He was further advised that if he desired civilian counsel, such counsel would be at no expense to the Government.  The applicant acknowledged receipt of this notification on 14 December 1957.

8.  On 19 December 1957, a Board of Officers determined that the applicant did not possess the required degree of adaptability for military service and that reasonable attempts had been made to reassign him in keeping with his abilities and qualifications.  The report of proceedings essentially show that the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions.  The Board of Officers recommended that the applicant be discharged from the service because of unsuitability and that a DD Form 257A (General Discharge Certificate) be furnished to him.

9.  On 20 December 1957, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on or about 29 November 1957 and remaining so absent until on or about 3 December 1957.  He was sentenced to confinement at hard labor for 30 days, which was suspended and appears to have been remitted without action.

10.  On 3 January 1958, the proper separation authority approved the Board of Officers' findings and recommendations.  Also on 3 January 1958, a physical examination was conducted on the applicant and he was found medically cleared for separation.

11.  The applicant went AWOL from 6 through 8 January 1958.
12.  On 10 January 1958, the applicant was discharged accordingly.

13.  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.

14.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for 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, or the individual's psychiatric or physical condition was such as to not 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.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.

15.  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.

16.  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.

17.  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 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.

18.  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 contends that his general discharge should be upgraded to an honorable discharge.

2.  While the applicant contends that he loved the military, the psychiatrist who conducted the psychiatric evaluation on him on 29 November 1957 stated that the applicant expressed his great dislike for the military service and indicated a marked desire to return to civilian life shows otherwise.

3.  Additionally, the applicant's contention that his wife leaving him and taking their two children with her was the reason for his discharge was also considered.  However, any family problems he was having at the time cannot justify his record of AWOL and worthless check-writing.

4.  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.

5.  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.

6.  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.  However, Brotzman does not apply because the applicant was seen by a psychiatrist and did not receive a personality disorder type diagnosis.
7.  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.  Nelson does not apply because no personality disorder diagnosis was made.  As the applicant's military records show that he accepted NJP under Article 15 of the UCMJ on four occasions and was convicted by a summary court-martial, there is no equitable basis to support upgrading the applicant's general discharge to an honorable discharge.

8.  Based on his extensive record of indiscipline, 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.



      __________X_________
                 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)                                         AR20090001108



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ABCMR Record of Proceedings (cont)                                         AR20090001108



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