IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009929 


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, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, he was harassed by noncommissioned officers (NCOs) and commissioned officers and forced to live in condemned barracks.   

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 enlisted in the Regular Army and entered active duty on 24 November 1969.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 36C (Lineman).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was advanced to specialist four (SP4), on 15 November 1970, and this was the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the National Defense Service Medal.

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  21 December 1970, for being disrespectful towards a superior commissioned officer; and 16 February 1971, for being absent without leave (AWOL) from 9 through 11 February 1971.  

5.  On 9 August 1971, the applicant was notified by his unit commander that action was being initiated to separate him from military service for reasons of unsuitability.  The unit commander indicated that the basis for the action was the applicant's demonstrated character and behavior disorders, which were considered detrimental to the accomplishment of the mission of the unit.  The unit commander also advised the applicant of his rights.  

6.  On 19 August 1971, the applicant completed an election of rights in which he waived the following rights:  consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.  

7.  On 18 September 1971, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-212 and directed the applicant receive a GD. 

8.  On 13 November 1969, the separation authority approved the applicant’s discharge under the provisions Army Regulation 635-212, by reason of unsuitability and directed that the applicant receive a GD.  On 21 September 1971, the applicant was discharged accordingly.  

9.  The DD Form 214 issued to the applicant at the time confirms he completed a total of  1 year, 9 months and 28 days of creditable active military service.  This document further shows the applicant was assigned a Separation Program Number (SPN) of 264 which reflected a character and behavior disorder. 

10.  There is no indication that the applicant ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations. 
11.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under these provisions could receive either an HD or GD.

12.  Department of the Army Message #302221Z, March 1976 changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200, the basic regulation governing the separation of enlisted personnel, was revised on 1 December 1976.  These changes contained policy guidance in regard to the processing of separations based on personality disorders, and specifically established the requirement that a personality disorder diagnosis had to be 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. 

13.  The Brotzman Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  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.

14.  Department of Defense Instruction (DODI) 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments. 

15.  Enclosure 4 of the current DODI 1332.28 provides discharge review standards and paragraph E4.3 provides guidance on equity determinations.  It states, in pertinent part, that if during the review of a discharge, it is determined there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of discharge proceeding under consideration, the discharge is inequitable.  

16.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides, in pertinent part, when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one SPCM during the current enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was harassed by NCOs and officers and was forced to live in a condemned barracks was carefully considered.  Although there is insufficient evidence to support these claims and his discharge processing was accomplished in accordance with the applicable regulation and was proper and equitable under the applicable law and regulation in effect at the time, it appears his discharge is inequitable under current regulatory standards.

2.  The evidence of record confirms the applicant was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder), as evidenced by the separation packet and SPN listed on his DD Form 214.  

3.  Although DODI 1332.28 provides policy for review of discharges for Discharge Review Boards, it is appropriate that this Board adopt and apply the standards set forth in this DODI for this particular case.  In view of these current standards for discharges issued because of a personality disorder, a GD is inequitable in this case.  Therefore, the Board determined it would now be appropriate to correct this inequity and issue the applicant an HD.

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 his current DD Form 214, dated on 21 September 1971; and 

   b.  issuing him a new DD Form 214 and Honorable Discharge Certificate of the same date.




      _______ _   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)                                         AR20090009929



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ABCMR Record of Proceedings (cont)                                         AR20090009929


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