IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090004158 


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 honorable.

2.  The applicant states that he was not told that his discharge would be characterized as under honorable conditions.   He explains that while stationed in Germany, he was unaware of being given a lawful order to get out of bed by a sergeant and thought it was one of his buddies harassing him.  Consequently, he told the sergeant where to go and he ended up in the stockade.  While in the stockade, he was given a choice of either going back to his unit or signing a waiver to be discharged from the Army.  He maintains that he was young and homesick; therefore, he signed the waiver.  He further states that he did not realize the type of discharge he received on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) until he returned home. 

3.  The applicant provides two character references in support of 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’s record shows he enlisted in the Regular Army and entered active duty on 24 March 1966.  His date of birth is listed as 14 June 1946.  He was 19 years, 9 months, and 11 days old at the time of enlistment.

3.  On 18 February 1967, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 5 February 1967 to
10 February 1967.  His punishment consisted of restriction for 60 days, extra duty for 45 days, and a forfeiture of $50.00 per month for 2 months.

4.  On 28 February 1967, the applicant underwent a psychiatric evaluation and was diagnosed as having a passive-aggressive personality (character and behavior disorder).  The medical official found the applicant judgment was poor and appeared immature.  The applicant also appeared sullen and withdrawn and there appeared to be no motivation for rehabilitation.  Therefore, he was psychiatrically cleared for separation from the service under the provision of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) or other administrative action deemed appropriate by the command. 

5.  On 14 June 1967, the applicant was convicted by a special court-martial for violation of the Uniform Code of Military Justice, Article 91.  Special Court-Martial Order Number 6, dated 12 July 1967 stated that on or about 9 June 1967 the applicant willfully disobeyed a lawful order.  His punishment consisted of confinement at hard labor for 4 months and forfeiture of 2/3 pay per month for
4 months.

6.  On 22 August 1967, the applicant’s commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 by reason of unsuitability.  He stated that the discharge was recommended because the applicant had repeatedly committed petty offenses and had a history of AWOLs.  He stated the applicant constantly disregarded unit formations, had no respect for established work report time, and showed no sense of loyalty to the unit or the United States Army.

7.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he 
waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements in his own behalf.

8.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued.  He further acknowledged that as a result of issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may encounter substantial prejudice in civilian life.

9.  On 8 September 1967, the separation authority directed the discharge of the applicant for unsuitability (character and behavior disorder), under the provision of Army Regulation 635-212.  He further directed the applicant receive a General Discharge Certificate.

10.  As a result, Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey, Special Orders Number 270, dated 27 September 1967, discharged the applicant under the provisions of Army Regulation 635-212, effective 28 September 1967.  The applicant's DD Form 214 shows that he was discharged with a characterization of service of under honorable conditions.  This form also shows that he had five periods of lost time:  29 July 1966 to 14 August 1966;
18 August 1966 to 28 August 1966; 5 February 1967 to 10 February 1967;
1 June 1967 to 4 June 1967; and 22 June 1967 to 20 September 1967.

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

12.  The applicant provided a supporting statement from a deacon of his church, dated 18 February 2009, that states he observed the applicant during his regular attendance at church and his relationship with members of the church.  He added that the applicant was a tireless worker and very supportive of his wife and family.

13.  The applicant's supervisor stated that the applicant has worked under his supervision for the past ten years.  He offered that the applicant has shown integrity, honesty, and remarkable work ethics.  He added that the applicant's aptitude for learning and following instructions enabled him to receive regular pay increases.  The supervisor concluded that the applicant was one of his best employees.


14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  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.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for 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 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. 

16.  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.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

2.  The applicant provided two supporting statements attesting to his "outstanding" character and his ability to do well in the same job for over ten year.  Although these traits are commendable, good post-service conduct alone is not a basis for upgrading his discharge.

3.  However, based on the applicant being diagnosed as having a passive-aggressive personality disorder, his application for discharge upgrade was reviewed under the criteria specified in the Brotzman Memorandum.  This 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.

4.  Additionally, 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.  

5.  The applicant's military personnel record contains one instance of nonjudcial punishment and one conviction by a special court-martial.  His record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.

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.  issuing the applicant an Honorable Discharge Certificate, dated               28 September 1967, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   
b.  issuing the applicant 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)                                         AR20090004158



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ABCMR Record of Proceedings (cont)                                         AR20090004158



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