IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008181 


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, in effect, that at the time of his discharge he was having mental issues that have since been diagnosed as post-traumatic stress disorder (PTSD) for which he has received a 100-percent service-connected disability from the Department of Veterans Affairs.  The applicant believes it was this disease that caused all of his problems prior to discharge.  The applicant concludes that he would like the characterization of his discharge upgraded for his own personal benefit and so his grandchildren may be proud of him for his service.

3.  The applicant provides no documentary evidence 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 was enlisted in the Regular Army and he entered active service on 29 April 1968 at the age of 17 years and 10 months.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank he attained while serving on active duty was the rank of private first class (PFC)/pay 
grade E-3.

3.  The applicant's record shows he shows he served a tour of duty in the Panama Canal Zone during the period 23 September 1968 through 22 June 1969.  He also served a tour of duty in the Republic of Vietnam during the period on or about 31 July 1969 through 28 October 1969.

4.  Item 24 (Decorations, Medals Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), as modified by a DD Form 215 (Correction to DD Form 214), dated 17 February 2005, shows he was awarded or authorized:  the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal with one bronze service star, Combat Infantryman Badge, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Expert Marksmanship Qualification Badge with Rifle Bar (M-60), and Marksman Marksmanship Qualification Badge with Rifle 
Bar (M-16).

5.  On 5 June 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for willfully disobeying a lawful order from a superior noncommissioned officer to go outside and police the area.  His punishment for this offense consisted of 14 days of restriction, 14 days of extra duty, forfeiture of 7 days of pay, and reduction to the pay grade of private (PV2)/pay grade E-2.

6.  The applicant's record contains a Company B, 2d Battalion, 60th Infantry Regiment, letter, dated 6 September 1969, subject:  Additional Information to Discharge under Provisions of Army Regulation 635-212, paragraph 2(2) (applicant's name and Social Security Account Number).  In this letter, the applicant's company commander stated the applicant had been seen by two neurosurgeons and a psychiatrist.  He was found to have a passive dependent personality with sociopathic and conversion features.  An investigation of his past medical records showed that he had this problem before going to Vietnam.  The commander stated that it was the professional opinion of the doctors and him that the applicant was of little value to the unit and the U.S. Army.  The commander recommended that the applicant be given a discharge for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

7.  Company B, 2d Battalion, 60th Infantry Regiment, letter, dated 6 September 1969, subject:  Separation under Army Regulation 635-212, shows the unit commander notified the applicant of the initiation of separation action against him under the provisions of Army Regulation 635-212.  The applicant was advised that this determination had been made in consultation with the rehabilitative team at the Panzer Community Care Clinic.  The commander informed the applicant that he had the right to present his case before a board of officers, submit statements in his own behalf, to be represented by counsel, or to waive any or all of these rights in writing.  The applicant was also advised that legally qualified counsel was available to advise him of the basis for the contemplated separation action.  The applicant acknowledged receipt of this notification and was advised by counsel on 9 September 1969.  The applicant declined and waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, to submit statements in his own behalf, and representation by legal counsel.  He also acknowledged his understanding that in the event a general discharge under honorable conditions was issued to him, he could expect to encounter substantial prejudice in civilian life.

8.  On 15 September 1969, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 653-212 because of habits and traits of character manifested by extreme behavior disorders.  He noted that an investigation of the applicant's medical records indicated that this condition existed since the early part of his basic training (before he went to Vietnam) and that his performance of duty as a rifleman and Soldier had been unsatisfactory.  The commander also noted the applicant's career had been marked by a long and documented case of mental disorder with no organic neurological lesions demonstrable and had not responded satisfactorily to Valium treatments.  The commander also noted that the applicant had received an Article 15 for refusing to cut grass while stationed in the Panama Canal Zone and that it was the only disciplinary action taken against him during his tenure in the Army.

9.  On 24 October 1969, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-212 by reason of unsuitability due to character and behavior disorders and directed he receive a general under honorable conditions discharge.

10.  On 31 October 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was discharged under the provisions of Army Regulation 635-212 with separation program number (SPN) 264 for character and behavior disorder.  He was credited with a total of 1 year, 6 months, and 2 days of creditable active service and had no lost time.

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

12.  Army Regulation 635-212, in effect at the time, 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.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-212.  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 (formerly known as character and behavior 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 upgrade of discharges based on personality disorders.

14.  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.

15.  Army Regulation 635-200, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was honorably discharged because at the time of his discharge he was having mental issues that have since been diagnosed as PTSD.

2.  The evidence shows the applicant enlisted in the Regular Army on 29 April 1968 and his only documented disciplinary action occurred on 5 June 1969 while he was serving in the Panama Canal Zone prior to his deployment to the Republic of Vietnam.

3.  The evidence shows the applicant was examined by two neurosurgeons and a psychiatrist.  He was found to have a passive dependent personality with sociopathic and conversion features.

4.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  It is noted that prior to the applicant's discharge, he served 4 months in the Republic of Vietnam during one campaign, was promoted three times (once while serving in the Republic of Vietnam), regained the rank of PFC, and was awarded the Combat Infantryman Badge.

6.  The evidence of record shows that historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant’s military service records should be corrected to show he was honorably discharged effective 31 October 1969 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.


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 31 October 1969, 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)                                         AR20090008181



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ABCMR Record of Proceedings (cont)                                         AR20090008181



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