IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090003491 


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 of 12 February 1968 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that during the timeframe covered by his general discharge, his wife had taken ill and he exhausted all remedies through the chain of command to be able to help his wife to no avail.  He goes on to state that his wife was diagnosed with "Sarcoidosis" and after her condition became stable he turned himself in and was convicted by a court-martial.  He further states that he was paroled at Fort Monmouth, New Jersey and when he finished his sentence he was offered the option of returning to his unit or accepting a general discharge and he elected to accept the general discharge.  He also states that he subsequently enlisted in the New York Army National Guard (NYARNG) and continued to serve until he was honorably discharged from the NYARNG and was transferred to the Retired Reserve.  Accordingly, he requests that the Board take into consideration the extenuating circumstances in his life at the time and the fact that he went on to serve for 21 years.  He further states that the general discharge prevents him from seeking employment that he desires and he desires to have it upgraded to a fully honorable discharge.

3.  The applicant provides a four-page letter explaining the circumstances surrounding his application, a Certificate of Retirement from the Army, copies of his discharge/separation documents, and copies of his awards, commendations and letters of appreciation and commendation.


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 was born on 1 December 1945 and enlisted in the Regular Army with a moral waiver on 27 February 1964.  He successfully completed his training and was transferred to Germany on 15 March 1965.  He was advanced to the pay grade of E-4 on 19 May 1966 and remained in Germany until he was returned to Fort Dix, New Jersey and was honorably released from active duty (REFRAD) on 8 February 1967 due to early separation from overseas.  He had served 2 years, 11 months and 12 days of total active service.

3.  On 27 March 1967, he again enlisted in the Regular Army in the pay grade of E-4, at Fort Hamilton, New York on 27 March 1967 for a period of 3 years.  He was married at the time of his enlistment and he was transferred to Fort Meade, Maryland for assignment as a general supply clerk.

4.  On 30 July 1967, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty (guard mount).  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction.

5.  On 24 August 1967, the applicant was convicted (pursuant to his pleas) by a summary court-martial of being absent without leave (AWOL) from 12 August to 14 August 1967.  He was sentenced to confinement at hard labor for 30 days and reduction to the pay grade of E-1.  However, the convening authority suspended that portion of the sentence pertaining to confinement at hard labor for 30 days for a period of 30 days unless sooner vacated.

6.  On 27 October 1967, he was convicted by a special court-martial of being AWOL from 1 October to 19 October 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  He was transferred to the stockade at Fort Monmouth, New Jersey.

7.  On 16 and 30 November 1967, he underwent a mental status evaluation and was diagnosed as having a passive-aggressive reaction.  The examining physician opined that the applicant gave a history of marked social inadaptability prior and during service, that he uses poor judgment, is not committed to any productive goals and that he was completely unmotivated for further military service.  He recommended that the applicant be separated from the service under the provisions of Army Regulation 635-212.

8.  On 8 January 1968, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-212, for unsuitability.  He cited as the basis for his recommendation the applicant's inadaptability to military service, his difficulty acclimating himself to civilian social life as well as to the military regimen, as marked by his repeated AWOL offenses and his inapt performance.

9.  The appropriate authority approved the recommendation for discharge on 10 January 1968 and directed that the applicant be furnished a General Discharge Certificate and that he be discharged under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.

10.  Accordingly, the applicant was discharged under honorable conditions on 12 February 1968, under the provisions of Army Regulation 635-212, for unsuitability due to a character and behavior disorder.  He had served 6 months of active duty during his current enlistment and had 136 days of lost time due to AWOL and confinement and had a total of 3 years and 7 months of total active service.

11.  There is no evidence to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  On 1 August 1974, the applicant enlisted in the NYARNG and served in the NYARNG until he was honorably discharged on 31 July 1982.  He again enlisted in the NYARNG on 12 December 1985 and continued to serve and was issued his 20-year letter on 1 August 1994.  He remained in the NYARNG until he was honorably discharged from the NYARNG in the pay grade of E-7 on 1 October 1995, and was transferred to the Retired Reserve. 

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability or unfitness.  It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability, based on a diagnosed character and behavior disorder.  Although a general discharge was authorized, an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, which superseded Army Regulation 635-212, 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.  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 of records shows that the applicant’s administrative separation on 12 February 1968 was accomplished in accordance with regulations then in effect.

2.  While the applicant’s behavior is not condoned by the Board and his service during the period is certainly not flawless, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army. In addition, he subsequently enlisted in the NYARNG and served honorably until he was retired in the pay grade of E-7. 

3.  Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.






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 by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 12 February 1968 and that the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 12 February 1968, in lieu of the general discharge of the same date held by him.






      _______ _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)                                         AR20090003491





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ABCMR Record of Proceedings (cont)                                         AR20090003491



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