IN THE CASE OF:	  

		BOARD DATE:	       18 AUGUST 2009

		DOCKET NUMBER:  AR20090005060 


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 under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that his discharge should be upgraded because he was not provided counseling services.  He also states that with the exception of his Army discharge all aspects of his experiences have been law abiding, productive, and pro-social.  His discharge was a result of excessive nonjudicial punishment while stationed in Germany.  He was late for bed checks and he was probably involved in one fight in the barracks with another Soldier.  He strongly feels that if counseling services that are available to servicemen today had been available to him he would have taken advantage of them and successfully completed his commitment.  He successfully completed basic training due in large part to the advice and counsel of his older brother.  

3.  The applicant further states that after his discharge he obtained a football scholarship and completed his education with a Bachelor of Arts degree in Sociology.  He has been married 47 years, he has two children, six grandchildren, and one great grandchild.  He worked for the Collin County Texas Sheriff's Office 5 years and he worked for the Dallas County Adult Probation Department for 13 years as an Adult Probation Casework Officer until retiring in May 2005.  

4.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge).

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 he enlisted in the Regular Army, in pay grade E-1, on 25 February 1959, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 111, Light Weapons Infantryman.  He was advanced to pay grade E-2 on 25 June 1959.  He served in Germany from 7 September 1959 to 9 February 1960.

3.  On 4 November 1959, a DA Form 458 (Charge Sheet) was prepared by the Commander, Company C, 1st Battle Group, 15th Infantry, APO 159, United States Forces, United States Army.  The applicant was charged with absenting himself from his unit on 17 October 1959.  He was convicted by a summary court-martial and sentenced to perform hard labor for 45 days and a forfeiture of $62.00 pay.  The sentence was approved and ordered executed on 9 November 1959.

4.  On 20 January 1960, a DA Form 458 was prepared by the Commander, Company C, 1st Battle Group, 15th Infantry, APO 159, United States Forces, United States Army.  The applicant was charged with being drunk and disorderly in quarters and willfully destroying military property of the United States on 10 January 1969.  He was convicted by a summary court-martial and sentenced to perform hard labor without confinement for 1 month and a forfeiture of $45.00 pay for 1 month.  The sentence was approved and ordered executed on 21 January 1960.  

5.  A Certificate of Psychiatric Examination, dated 2 February 1960, found the applicant was alert and responsive in examination.  He was motivated and his attitude towards the military was defective and progressively deteriorating.  He was found to have no defects of orientation, intelligence, or judgment and there was no evidence of delusion, hallucinations, or other symptoms of psychosis.  The 
examining official, an Army medical doctor, opined that the applicant was not insane, possessed sufficient mental capacity to know the difference between right and wrong and to adhere to the right, and he was mentally responsible for his acts. The examining official recommended that the applicant continue on active duty until the command decided whether or not he should be retained in the service.  The examining official recommended that the applicant be separated under the provisions of Army Regulation 635-209 (Personnel Separations) due to unsuitability if his performance was deemed to be useless to the service.

6.  On 9 February 1960, the applicant's commander recommended the applicant appear before a board of officers to determine whether he should be eliminated from the service.  

7.  On 9 February 1960, after consulting with counsel, the applicant acknowledged receipt of the proposed recommendation for separation.  He elected not to have his case considered by a board of officers and elected not to submit a statement in his own behalf.

8.  On 9 February 1960, the applicant's company commander recommended that he be discharged under the provisions of Army Regulation 635-209, for unsuitability.

9.  On 10 February 1960, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209, and directed the issuance of a General Discharge Certificate.  

10.  The applicant was discharged, in pay grade E-2, on 5 March 1960, under the provisions of Army Regulation 635-209 with a general discharge with a separation program number (SPN) of 264 (character and behavior disorder).  He was credited with completing 1 year and 11 months of net active service.  

11.  On 8 September 1972, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-209, in effect at the time, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.


13.  Army Regulation 635-200 (Enlisted Separation) 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 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, better known as the Brotzman Memorandum was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for the upgrade of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, 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 available evidence shows the applicant was convicted twice by a summary court-martial during his short period of service.  The applicant was evaluated by an Army medical doctor and it was recommended that he be separated under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability.  

2.  The applicant's administrative separation under the provisions of Army Regulation 635-209 by reason of unsuitability was accomplished in compliance with applicable regulation in effect at the time.  However, it now appears the applicant’s overall service record and his diagnosed character and behavior 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.  voiding the applicant’s general discharge under the provisions of Army Regulation 635-209 that was issued on 5 March 1960 and issuing him a honorable discharge with the same date; and

   b.  issuing him an Honorable Discharge Certificate from the United States Army, dated 5 March 1960 in lieu of the General Discharge Certificate he now holds.




      _______ _   __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)                                         AR20090005060



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ABCMR Record of Proceedings (cont)                                         AR20090005060



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