BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016968 


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 discharge under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, he was discharged for incidents which occurred in Vietnam.  He states he was age 18 and influenced by his peers.  He regrets his decisions; he used poor judgment and apologizes.  

3.  The applicant provides no additional documents 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.  On 31 October 1969, at age 17, the applicant enlisted in the Regular Army with parental consent.  He served in Germany and was honorably discharged on 30 July 1970 for immediate reenlistment.

3.  The applicant reenlisted on 31 July 1970 for assignment in Vietnam.  He departed Vietnam in August 1971 and was reassigned to Fort Eustis, VA.

4.  On 29 November 1971, the applicant underwent a psychiatric examination and was diagnosed with an inadequate personality with drug abuse.  The psychiatrist indicated that the applicant’s diagnoses came under the category of character, behavior and personality disorders and disposition was effected through administrative channels.  The applicant’s conditions were due to deficiencies in emotional, personality and characterological development of such a degree as to render him more of a liability than an asset for further military service.  The psychiatrist recommended that the applicant be psychiatrically cleared for any administrative action deemed appropriate by his command.

5.  On 7 December 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of being absent without leave (AWOL) from 7 October 1971 to 14 October 1971 and 15 October 1971 to 15 November 1971.

6.  On 17 December 1971, the company commander notified the applicant of pending separation action under the provisions of Army Regulation 635-212 for unsuitability - character and behavior disorders.  The applicant was advised of his rights.  He consulted with legal counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.

7.  The company commander recommended that the applicant be required to appear before a board of officers under the provisions of Army Regulation 
635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service.  The company commander recommended discharge because of the applicant's habits and traits of character manifested by repeated commission of offenses, habitual shirking, and disregard for authority.  

8.  On 4 January 1972, the separation authority waived rehabilitation, approved the separation action, and directed the issuance of a general discharge.

9.  On 5 January 1972, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Special Orders Number 3 discharged the applicant effective 10 January 1972 under the provisions of Army Regulation 635-212 for unsuitability [character and behavior disorders].  He had completed 1 year and 4 months of active military service during the period under review and 9 months of prior active military service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 40 days of lost time.

10.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.   

11.  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.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It 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. 

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was discharged for incidents which occurred in Vietnam.  However, there is insufficient evidence to substantiate this claim.  

2.  The applicant’s contentions regarding his age during the time in question were considered.  However, age is insufficiently mitigating to warrant relief in this case.  
3.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.

4.  The applicant was advised of the effects of a general discharge.  The applicant was afforded the opportunity to consult with counsel and submit statements in his own behalf, but he declined to do so.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

6.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

7.  The Nelson Memorandum 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" that a fully honorable discharge should not be granted.  

8.  The applicant's military personnel record contains one instance of NJP for two specifications of being AWOL.  However, his record of indiscipline does not meet the "clear and demonstrable reasons" that a fully honorable discharge should not be granted.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.

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.  issuing the applicant an Honorable Discharge Certificate, dated 10 January 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   b.  issuing the applicant 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)                                         AR20090016968



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016968



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1