BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090012452 


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 be upgraded to an honorable discharge.

2.  The applicant states that he was being harassed by a major and was given the option to get out by a captain as a response to the harassment.  He goes on to state that he was told at the time that he could request an upgrade at a later date.  He further states that he was told about one of the Presidents granting clemency to veterans to upgrade their discharges back in the 1970s but he forgot all about it until he started taking his dad to the Department of Veterans Affairs and started wondering about his own service.

3.  The applicant provides no additional documents with 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 enlisted with a moral waiver in Beckley, West Virginia, on 20 January 1967 for a period of 2 years.  He had a general technical score of 68 and was classified as a category IV enlistee.  He completed his basic training at Fort Polk, Louisiana, and his advanced individual training as a communications center specialist at Fort Gordon, Georgia, before being transferred to Germany on 20 September 1967 for assignment to a signal company.

3.  On 29 December 1967, he was convicted pursuant to his plea by a summary court-martial of wrongfully appropriating and attempting to steal the property of another Soldier.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay, and restriction.

4.  On 22 January 1968, the applicant underwent a psychiatric evaluation and was diagnosed as having a dyssocial personality.  The examining psychiatrist opined that the applicant suffered from a chronic character disorder of the dyssocial type, that he was a poor candidate for rehabilitation, and that he would continue to be a problem to the command as he was in civilian life.  The applicant was psychiatrically cleared for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharges – Unfitness and Unsuitability).

5.  On 29 January 1968, nonjudicial punishment (NJP) was imposed against the applicant for assaulting another Soldier with his fist.

6.  On 8 February 1968, the applicant's commander initiated action to discharge the applicant under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He cited the applicant's failure to respond to repeated counseling sessions, his disciplinary record, and his lack of potential for rehabilitation as the basis for his recommendation.

7.  On 13 February 1968, NJP was imposed against the applicant for breaking restriction.

8.  After consulting with defense counsel, the applicant waived all of his rights against advice of counsel and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 20 February 1968 and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 22 March 1968 under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He had served 1 year, 2 months, and 3 days of total active service.

11.  There is no evidence in the available records to show that he 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 basic authority for the separation of enlisted personnel for unsuitability or unfitness.  It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability based on a diagnosed character and behavior disorder.  Although a general discharge was authorized, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted 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 a 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, better known as the "Brotzman Memorandum," was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders.  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 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.  Convictions by general court-martial or by more than one special court-martial were determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant's administrative separation on 22 March 1969 was accomplished in accordance with regulations then in effect.

2.  While the applicant's behavior is not condoned by the Board, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may exist permanently.

3.  Consequently, it appears that the above-mentioned memoranda should be applied to this case and that his discharge should be upgraded to honorable.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 showing that he was separated from the service with an Honorable Discharge Certificate on 22 March 1969; issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 22 March 1969, in lieu of the general discharge of the same date currently held by him; and issuing to him 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)                                         AR20090012452



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ABCMR Record of Proceedings (cont)                                         AR20090012452



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