IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011369 


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, under honorable conditions discharge be upgraded to an honorable discharge.  He also requests that the narrative reason for separation be amended and that his Separation Program Number (SPN) be deleted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that members separated by reason of a personality disorder must be issued an honorable discharge unless they have been convicted by a general court-martial or more than one special court-martial.  In the interest of equity, his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214, dated 10 November 1969, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 30 October 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Pioneer).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show he served in the Republic of Vietnam from on or about 2 June 1969 to on or about 19 July 1969.  His records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 5 March 1969, for being absent without leave (AWOL) during the period on or about 1 March through 5 March 1969.  His punishment consisted of a forfeiture of $20.00 pay and 14 days of restriction; and 

	b.  on 8 April 1969, for being AWOL during the period on or about 30 March 1969 through 4 April 1969.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and a forfeiture of $25.00 pay.

5.  On 10 October 1969, the applicant underwent a psychiatric evaluation at Fitzsimmons General Hospital, Denver CO, for symptoms of passive dependent personality with sociopathic traits.  The attending physician indicated that the applicant had no disqualifying physical or mental defects sufficient to warrant disposition through medical channels.  He added that the applicant was found mentally responsible both to distinguish right from wrong and to adhere to the right, and that his condition was not amenable to hospitalization, treatment, disciplinary action, training, or transfer.  He had reached maximum hospital benefits.  He recommended no further attempt at rehabilitation because of the applicant's characterological defect and that he be separated from the service under the applicable regulation. 

6.  On 23 October 1969, the applicant’s immediate commander notified the applicant by memorandum that he was being recommended for separation from the Army under the provisions of paragraph 10 of Army Regulation 635-212 (Personnel Separations) for unsuitability.  The applicant acknowledged this notification on the same date.

7.  On 23 March 1969, the applicant consulted with counsel regarding the pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

8.  On 23 October 1969, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation    635-212 for unsuitability.  The immediate commander stated that the discharge was recommended because of the applicant's chronic passive dependency reaction, manifested by helplessness, indecisiveness, mild depression, anxiety, inability to accept responsibility, and somatic complaints.  

9.  On 5 November 1969, the separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212 and directed that he issued a DD Form 257A (General Discharge Certificate).  Accordingly, the applicant was discharged on 10 November 1969.  The DD Form 214 he was issued at the time confirms he completed 1 year and 2 days of creditable active military service.  Item 11c (Reason and Authority) of shows the entry "AR 635-212 SPN 264."

10.  There is no evidence in the available record which shows he applied to the Army Discharge Review Board 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, set forth the policy and prescribed procedures for discharging 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 inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 (Personnel Separations) was directed.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, which superseded Army Regulation 635-212, 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, 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. 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.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  The regulation in effect at the time stated that the authority for transfer or discharge would be entered in item 11c by reference to the appropriate regulation, circular, bulletin, statute, etc. followed by the SPN and descriptive reason for transfer or discharge.  However, when the reason for discharge was unsuitability, inaptitude, unfitness, misconduct, homosexuality, resignation in lieu of elimination, or any other reason involving mental or moral issues upon which the discharge of the individual could be predicated; would not be stated in words on the DD Form 214.  Instead, the authority and SPN would be entered in item 11c.

15.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPN "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded and that his SPN and reason for discharge should be amended or removed.

2.  With respect to the applicant's discharge, the evidence of record shows the applicant had a pattern of misconduct as evidenced by two instances of nonjudicial punishment, AWOL, and his disregard for military authority.  Accordingly, his chain of command initiated elimination action against him.  

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for the applicant’s discharge and the characterization of service were both proper and equitable at the time.  However, it now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

4.  With respect to the reason for separation and SPN, the evidence of record shows the applicant was discharged by reason of unsuitability.  Absent his character and behavior disorders, there was no fundamental reason to process him for separation.  The underlying reason for separation was unsuitability.  The governing regulation prohibited the entry of unsuitability in words on the DD Form 214 and required that the authority and SPN be entered in item 11c instead. Therefore, the applicant's DD Form 214 correctly shows the reason and SPN associated with his discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that the individual concerned separated from the service with an honorable discharge on 10 November 1969;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 10 November 1969, in lieu of the general, under honorable conditions discharge of the same date now held by him; and

	c.  issuing him a new DD Form 214 reflecting the above corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the reason for separation and the SPN code.



      _______ _   _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)                                         AR20090011369



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ABCMR Record of Proceedings (cont)                                         AR20090011369



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