IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090012500 


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 fully honorable.

2.  The applicant states that he was young, stupid, and scared.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 that he enlisted in the Regular Army on 5 November 1965 at age 18 (his date of birth is 1 August 1947).  He was awarded the military occupational specialty of wheel vehicle mechanic and served in Vietnam.  

3.  On 24 July 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order.

4.  On 6 October 1966, the applicant was convicted by a Special Court-Martial for failure to go at the time prescribed to his appointed place of duty; being absent without leave (AWOL) from 16 to 20 September 1966; disobeying a lawful order; and being disrespectful towards a superior noncommissioned officer.

5.  On 19 December 1966, the applicant accepted NJP for failure to go to his appointed place of duty.

6.  On 21 December 1966, the applicant was diagnosed with a schizoid personality by a psychiatrist.

7.  On 28 December 1966, the applicant was advised of his commander's intent to recommend him for separation due to unsuitability and of his rights in conjunction with that recommendation.  The applicant waived all of his rights.

8.  On 31 December 1966, the applicant's commander forwarded a recommendation to discharge the applicant due to unsuitability.

9.  The commander's recommendation was approved by the appropriate authority.  Accordingly, on 13 February 1967, the applicant was issued a general discharge due to unsuitability, character and behavior disorder.

10.  Army Regulation 635-212, then in effect, 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. 

11.  Army Regulation 635-200 (Personnel 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 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. 

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 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 issued.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's repeated misconduct certainly warranted separation due to unsuitability.

2.  While the applicant was young (age 19 when separated), he was no younger than other Soldiers who honorably completed their enlistment obligations.

3.  However, the Nelson Memorandum mandates that discharges due to personality disorders be upgraded unless the Soldier has more than one special court-martial or a general court-martial conviction.  The applicant was only convicted by one special court-martial.

4.  As such, his discharge must be upgraded to fully honorable.

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 the general discharge he was issued on 13 February 1967; and
   
   b.  issuing him a honorable discharge, as 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)                                         AR20090012500



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ABCMR Record of Proceedings (cont)                                         AR20090012500



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