IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090006803 


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 he was an 18 year old alcoholic.  He states that he got married and had two children but his drinking cost him his marriage.  He states that in his early 40's he finally quit drinking and he put his children through nursing school and college.  He states he became involved in local politics.  He was elected "a local committeeman" and that he served for 12 years.  He states he regrets the mistakes of his youth and asks for an upgrade of his discharge on behalf of himself and his family.

3.  The applicant provides, in support of his application, three personal references and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 25 July 1962.

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 personnel records show he enlisted in the Regular Army on 23 January 1961, the day after his 17th birthday, for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 293.10 (Radio Relay and Carrier Operator).

3.  On 12 June 1961, the applicant was assigned to the 232nd Signal Company at Fort Huachuca, AZ.  On 19 February 1962, the applicant pled guilty to a charge of disturbing the peace in civilian court.  He was fined $100 or 30 days in jail.

4.  On 30 September 1961, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly in the barracks.

5.  On 17 March 1962, the applicant deployed with his unit to the Republic of Vietnam.

6.  On 6 and 31 May 1962 the applicant accepted NJP for being drunk and disorderly and to being disrespectful towards a commissioned officer.

7.  On 6 July 1962, the applicant pled guilty before a summary court-martial to being drunk and disorderly.

8.  On 9 July 1962, the applicant was interviewed by a captain of the Medical Corps for a psychiatric evaluation for the purpose of elimination from the service under the provisions of Army Regulation 635-209 (Personnel Separations, Discharge, Unsuitability).  The examiner found no neurotic or psychotic thought processes or behavioral patterns.  The examiner felt that the applicant's basic problem was insufficient maturity of character which made him unable to accept directives from those in positions of authority.  The examiner stated the applicant could distinguish right from wrong and there were no medical conditions which warranted disposition through medical channels.  The examiner felt that useful service from the applicant was unlikely and recommended elimination from the service under the provisions of Army Regulation 635-209.



9.  On 10 July 1962, the applicant stated he had been counseled and advised of the basis for the separation recommendation under the provisions of Army Regulation 635-209.  He stated he had been afforded the opportunity to request counsel but he wished to decline this service.  He further waived a hearing by a board of officers and he indicated that he did not wish to submit a statement on his own behalf.

10.  On 11 July 1962, the applicant's commander recommended that he be discharged from the service for frequent incidents of character and behavior disorder.  The commander stated the applicant, with no thought of consequences, had consistently committed numerous acts of misconduct within the military such as being drunk and disorderly, being disrespectful towards a superior officer, and the willful destruction of private property.  The commander stated the applicant, for reasons that apparently took place during his childhood, rebels against discipline and good order and he felt the applicant lacked the ability and stability to adjust himself within the U.S. Army.  The commander stated that all efforts to assist the applicant in adjusting to military life had been useless.  

11.  On 16 July 1962, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-209 and directed that he receive a general discharge.  On 25 July 1962, the applicant was discharged.  The separation program number (SPN) shown on his DD Form 214 is "264."  He had completed 1 year, 6 months, and 3 days of active service that was characterized as under honorable conditions.

12.  The applicant submitted three personal references that attest to the applicant having always been a conscientious employee, an intelligent, hard working, honest, and reliable person.  He was a loving father and a man with impeccable character who has lived a truly great life.

13.  Army Regulation 635-209 (Personnel Separations, Discharge, Unsuitability), in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included character and behavior disorders.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

14.  Army Regulation 635-5 (Personnel Separations, Separation Forms), then in effect, prescribes forms to be used in the separation of Army personnel.  Appendix I contains the separation program number (SPN) and authority governing separations.  Appendix I shows that the SPN "264" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Character and Behavior Disorders" and that the authority for discharge under this SPN is Army Regulation 635-209.  

15.  Army Regulation 635-200 (Personnel Separations) 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.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  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 (previously known as character and behavior disorders).  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

3.  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.  

4.  There are no "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it is appropriate to upgrade his discharge 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:

	a.  voiding the general discharge now held by the applicant;

	b.  showing the applicant was discharged from the service with an honorable discharge on 25 July 1962; and

	c.  that the applicant be issued an Honorable Discharge Certificate, dated 
25 July 1962, in lieu of the general discharge of the same date now held by him.



      _______ _   _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)                                         AR20090006803



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ABCMR Record of Proceedings (cont)                                         AR20090006803



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