DOCKET NUMBER:  AR20090003846 


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 a fully honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge, the officer in charge suggested that he accept a general discharge or else he would have to wait over a month for an honorable discharge.  Being a young man who was ready to get out of the service, he allowed himself to be talked into it and he has regretted it ever since.  He goes on to state that he enjoyed the military but had some issues with civil authorities at the end of his service.  He continues by stating that without putting the blame on anyone else, he took the advice of a sergeant first class; however, later in life he realized he was wrong.  Now at the age of 68, he requests what he feels he deserves, which is an honorable discharge that he can be proud of.

3.  The applicant provides no additional documents with his 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 was inducted into the Army of the United States in Milwaukee, Wisconsin and was accepted with a moral waiver on 28 September 1959.  He completed his basic training at Fort Hood, Texas and was transferred to Fort Sill, Oklahoma to undergo his advanced individual training (AIT) as a cannoneer.  While in AIT, he was charged with 1 day of being absent without leave (AWOL).  The record is silent as to any punishment imposed.

3.  He completed his AIT and was transferred to Fort Benning, Georgia for assignment to a field artillery battery.  His records show that he was charged with 1 day of being AWOL on 18 August 1961 and again the record is silent as to any punishment imposed.

4.  The applicant went AWOL on 24 August 1961 and remained absent in desertion until he was returned to military control at the Presidio of San Francisco, California, where charges were preferred against him for the AWOL offense.

5.  On 1 November 1961, he was convicted pursuant to his plea, by a special court-martial of being AWOL from 24 August to 4 October 1961.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  However, the convening authority suspended that portion of sentence pertaining to confinement for 6 months for a period of 6 months unless sooner vacated.

6.  The applicant's commander subsequently initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability) for unsuitability due to a character and behavior disorder.  He cited as the basis for his recommendation that the applicant had steadfastly maintained a defective attitude towards military life in general and that punishment had been fruitless.

7.  The applicant submitted a statement in which he stated that he had been counseled by the commander regarding his rights in connection with the commander's recommendation for separation and declined the opportunity to 


consult with counsel.  He indicated that he did not desire to submit a statement in his own behalf and stated that he would accept discharge without board action under the provisions of Army Regulation 635-209.

8.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged on 17 November 1961, under the provisions of Army Regulation 635-209 for unsuitability due to a character and behavior disorder.  His service was characterized as [general] under honorable conditions and issued a General Discharge Certificate.  He served 2 years and 5 days of total active service and had 45 days of lost time due to AWOL and confinement.  The applicant was also advised of the procedures to request an upgrade of his discharge by the Army Discharge Review Board (ADRB) within that board's
15-year statute of limitations.  However, there is no evidence in the available records to show that he ever did so.

10.  Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  An honorable or general discharge was authorized.  That regulation was subsequently incorporated into Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as Chapter 13.

11.  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.  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 record shows that the applicant’s administrative separation on 27 November 1961 was accomplished in accordance with regulations then in effect.

2.  Although the applicant has provided no evidence to support his contention that he was improperly advised at the time, it now appears his overall service record and his diagnosed character and behavior disorder (now known as a personality disorder) warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memorandums.

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.  showing that he was separated from the service with an Honorable Discharge Certificate on 17 November 1961;

     b.  issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 17 November 1961, in lieu of the general discharge of the same date now held by him; and



     c.  issuing to him a new DD Form 214 reflecting the above corrections.




      ___________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)                                         AR20090003846



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