IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017929 


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

2.  The applicant states that at the time of his discharge he was not mentally stable and under the influence of heavy medications.  He contends he needed medical treatment which was denied.

3.  The applicant provides copies of clinical assessments rendered by a civilian doctor as documentary evidence 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 enlisted in the Regular Army and he entered active service on 22 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank he attained while serving on active duty was the rank of specialist four/pay grade E-4.

3.  The applicant's record shows he shows he served tours of duty in the Federal Republic of Germany and in Italy.

4.  Item 24 (Decorations, Medals Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  A review of the applicant's record revealed his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions for offenses including:

* failing to report at the time prescribed to his appointed place of duty
* failing to obey a lawful order stated in the unit standing operating procedures by missing bed check
* absenting himself from his unit without authority for 1 day

6.  The applicant's record contains a U.S. Army Europe Form 3087 (Report of Psychiatric Evaluation) rendered by a military psychiatrist on 11 March 1969 as part of the pre-separation process under the provisions of Army Regulation 
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The examining psychiatrist diagnosed the applicant with having an emotionally unstable personality which existed prior to entering the service.  He was found to have a chronic character and behavior disorder of the emotionally unstable type, well characterized by his reaction to the usual stress of military life with excitability and his poor judgment in his misuse of alcohol and drugs, compounded by an authority problem.  The psychiatrist opined the applicant had poor potential for rehabilitation and recommended he be separated.

7.  Headquarters and Headquarters Company, U.S. Army Southern European Task Force, letter, dated 13 March 1969, subject:  Elimination from the Service - Unsuitability, shows the unit commander notified the applicant of the initiation of separation action against him under the provisions of Army Regulation 635-212.  The applicant was advised that the basis for this action was his inability to conform and adjust to military standards of conduct and his failure to comprehend and obey military regulations, procedures, and lawful orders.

8.  The commander informed the applicant he had the right to present his case before a board of officers, submit statements in his own behalf, to be represented by counsel, or to waive any or all of these rights in writing.  The applicant was also advised that legally qualified counsel was available to advise him of the basis for the contemplated separation action.  The applicant acknowledged receipt of this notification and was advised by counsel on 13 March 1969.  The applicant declined and waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, to submit statements in his own behalf, and representation by legal counsel.  He also acknowledged his understanding that in the event a general discharge under honorable conditions was issued to him, he could expect to encounter substantial prejudice in civilian life.

9.  On 13 March 1969, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 653-212 because of his inability to conform and adjust to military standards of conduct and his failure to comprehend and obey military regulations, procedures, and lawful orders.  He noted the applicant's lack of interest, defective attitude, and inability to expand effort in any constructive way which showed poor judgment and undependability on his part.

10.  On 15 March 1969, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-212 by reason of unsuitability due to character and behavior disorders and directed he receive a general under honorable conditions discharge.

11.  On 27 March 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was discharged under the provisions of Army Regulation 635-212 with separation program number 264 for character and behavior disorder.  He was credited with a total of 1 year, 6 months, and 6 days of creditable active service and had no lost time.

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

13.  The applicant provides copies of clinical assessments rendered by a civilian doctor following treatment sessions for depression and anger management which took place from 25 March 2009 to 12 January 2010.  In pertinent part, these assessments show the applicant harbors quite a bit of resentment toward the military for the manner in which he was separated in lieu of providing him medical treatment and care.

14.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided 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.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-212.  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 (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, 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.

16.  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 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.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was honorably discharged because at the time of his discharge he was not mentally stable and under the influence of heavy medications.

2.  The evidence shows the applicant's only documented disciplinary actions were for minor offenses.

3.  The evidence shows the applicant was examined by a psychiatrist.  He was found to have a chronic character and behavior disorder of the emotionally unstable type, well characterized by his reaction to the usual stress of military life with excitability and his poor judgment in his misuse of alcohol and drugs, compounded by an authority problem.

4.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-212 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  It is noted that prior to the applicant's discharge, he served in the Federal Republic of Germany and Italy and was promoted three times.

6.  The evidence of record shows that historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant's military service records should be corrected to show he was honorably discharged effective 27 March 1969 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

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 27 March 1969, in lieu of the General Discharge Certificate of the same date now held by him 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)                                         AR20090017929



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ABCMR Record of Proceedings (cont)                                         AR20090017929



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