IN THE CASE OF:	  

		BOARD DATE:	       28 JULY 2009

		DOCKET NUMBER:  AR20090006235 


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 an upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was going to change to honorable after six months if he had no trouble.  He further states, in effect, he would like to have veteran's plates for his car.

3.  The applicant provides no additional documentary evidence 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 he was inducted into the Army of the United States on 17 February 1971.  He was awarded military occupational specialty (MOS) 15F (missile crewman).  The highest rank/grade he held during his tenure of service was private first class (PFC)/E-3.  The available records do not show any significant acts of achievement or valor during his military service.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 10 September 1971 to 4 January 1972 for failing to go at the prescribed time to his appointed place of duty on 5 September 1971, for failing to return to his section after taking a driver's test on 3 December 1971, and for absenting himself from his place of duty to avoid field exercises on 6 December 1971.

4.  Four statements made by his superiors are contained in the applicant's records indicating he was counseled on numerous occasions for incidents including poor performance and attitude, disrespect to superiors, failure to maintain acceptable standards of personal hygiene and uniform, lateness to work place, and being absent from his place of duty.  Efforts to rehabilitate him were deemed unsuccessful.

5.  The applicant's records contain a Report of Mental Status Evaluation.  The results do not indicate he was diagnosed with a personality disorder and it cannot be determined if the medical officer who conducted the mental status evaluation was trained in psychiatry.  

6.  On 14 January 1972, the applicant was advised by his commander that discharge proceedings under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) had been initiated for his elimination from the service by reason of unsuitability and that his separation could result in an undesirable or general discharge.  He was further advised of his rights in these proceedings.  The applicant acknowledged receipt of notification of elimination action being taken against him.

7.  On 14 January 1972, the applicant was advised by consulting counsel of the basis for the contemplated separation for unsuitability under Army Regulation 635-212.  The applicant acknowledged that he understood he may encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions was issued.

8.  On 25 January 1972, the applicant's commander recommended he be discharged because of character and behavior disorders and inability to adapt to military life, under the provisions of paragraph 6b(2) of Army Regulation 635-212.

9.  On 28 January 1972, the separation authority approved the applicant's elimination from the service for unsuitability and directed he be issued a General Discharge Certificate.

10.  On 11 February 1972, the applicant was issued a General Discharge Certificate under the provisions of Army Regulation 635-212 with a Separation Program Number (SPN) of 264.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued shows he completed a total of 11 months and 25 days of active military service.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides 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.

13.  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.

14.  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. 

15.  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.

16.  Army Regulation 635-5 (Personnel Separations-Separation Documents), Appendix A shows SPN 264 corresponds to character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be changed to an honorable discharge because it was going to be changed to honorable after six months, if he had no trouble.  He would also like to have veteran's plates for his car.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.

3.  The applicant was advised of the effects of a general discharge.  The applicant was afforded the opportunity to consult with counsel and to submit statements in his own behalf, but he declined to do so.

4.  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.

5.  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.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

6.  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.  

7.  The applicant's military personnel record contains three instance of NJP.  However, his record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given. 

8.  A separation for unsuitability with SPN 264 (character and behavior disorder), must include a diagnosis of a personality disorder made by a physician trained in 
psychiatry.  The commander’s recommendation indicated that the applicant’s separation was based on character and behavior disorders (now known as personality disorders).  However, there is no indication in the mental status evaluation to show that he was diagnosed with a character and behavior (personality) disorder and he provides no evidence to show he was diagnosed at the time or later with such a disorder.  In addition, it cannot be determined if the officer who conducted the mental status evaluation was trained in psychiatry.  Therefore, in accordance with the Brotzman/Nelson Memoranda it appears he was inappropriately given a general discharge.  Therefore, it would be appropriate to upgrade the applicant's general, under honorable conditions discharge to an honorable discharge 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 11 February 1972, 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.




      __________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)                                         AR20090006235



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ABCMR Record of Proceedings (cont)                                         AR20090006235


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