IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090012289 


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

2.  The applicant states, in effect, that because of his immaturity he was influenced by another Soldier to go AWOL.  He further states that he has led a respectable life since his discharge and he should no longer be punished for his immaturity at the time of his discharge.

3.  The applicant provides a self-authored letter and his résumé 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 inducted into the Army of the United States and he entered active service on 31 January 1964 at the age of nineteen years, 3 months, and 23 days.  His record shows that he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's records document no acts of valor or significant achievement.
On 27 August 1964, the applicant accepted non-judicial punishment (NJP) for sleeping while on guard duty.  His punishment for this offense consisted of 14 days of restriction and extra duty.

4.  On 23 June 1965, a summary court-martial (SCM) found the applicant guilty of one specification of violating Article 86 for being absent without leave (AWOL) for the period 16 October 1964 through 13 May 1965.  As a result, he was sentenced to reduction to private (PV1)/E-1, forfeiture of $50.00 for 3 months, and confinement to hard labor for 3 months (suspended until 24 December 1965).  On 16 August 1965, the unexecuted portion of the sentence to confinement was ordered to be duly executed for reasons not disclosed in the applicant's record.

5.  The applicant's record contains a DD Form 616 (Request for Service Record or Allied Papers) which shows the applicant was apprehended by civilian authorities on 28 October 1964 and tried for petty theft.  A DA Form 24 (Service Record) confirms that while in an AWOL status from the Army, the applicant was placed in civilian confinement during the period 28 October 1964 to 12 May 1965 based on a charge of larceny of private property.

6.  A FH Form 195 (Report of Psychiatric Evaluation (Mental Hygiene Consultation Service), dated 28 August 1965, shows the applicant was diagnosed with an "inadequate personality" and found that he was mentally responsible, able to distinguish right from wrong and to adhere to the right, had the mental capacity to understand and participate in board proceedings, and that there was no evidence of any psychiatric disorder.  The evaluator, an Army psychiatrist, recommended the applicant be separated from military service under Army Regulation 635-209 
(Personnel Separations-Discharge-Unsuitability).

7.  On 9 September 1965, the unit commander recommended the applicant's discharge under the provisions of Army Regulation 635-209.  He cited the applicant's absences without leave, failed attempts for rehabilitation, and his civil confinement as the basis for taking the action.  The applicant was advised of the basis for the contemplated separation action and afforded the opportunity to request counsel.  The applicant declined counsel and waived his right to consideration of his case by a board of officers.  He also elected not to submit a statement in his own behalf.

8.  In September 1965, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209, by reason of unsuitability (apathy, defective attitudes, and inability to expend effort constructively), and directed he receive a general, under honorable conditions discharge.  On 29 September 1965, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows Separation Program Number (SPN) 264, character and behavior disorder.  He was credited with a total 11 months and 11 days of creditable active service.

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

10.  Army Regulation 635-209, 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 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.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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, 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.

12.  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 should be considered as a mitigating factor for an 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general, under honorable conditions discharge should be upgraded to an honorable discharge because he has led a respectable life since his separation from the service was carefully considered.  However, although the applicant's post-service conduct and achievements are noteworthy and commendable, they do not provide a sufficient basis to upgrade his discharge.

2.  The applicant also contends that his immaturity led him to go AWOL while in the Army.  However, records show that he was nearly 20 years of age at the time of his NJP and he was over 20 years of age at the time of his offense that led to his SPCM.  As a result, there is no evidence to indicate that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The Nelson Memorandum specified that the presence of a personality disorder should be considered as a mitigating factor in justifying the 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.  Although the applicant was diagnosed with an personality disorder, his disciplinary history which includes the acceptance of NJP, a summary courts-martial with a suspended sentence that was later executed, and 261 days of time lost during which he was also confined by civil authorities for larceny, establishes clear and demonstrable reasons not meriting a fully honorable discharge.

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X___  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________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)                                         AR20090012289



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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