IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090018298 


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 upgrade of his general under honorable conditions discharge to honorable.  He also requests, in effect, that his rank be restored.

2.  The applicant states that he honorably served his entire enlistment.  He wishes to put the record straight and to right the wrong.  He also contends that he was reduced in rank at the time of his discharge.

3.  The applicant provides no additional documentation 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 17 May 1966, the applicant was inducted into the Army of the United States.  Six days later he was discharged for the purpose of enlisting in the Regular Army.

3.  On 23 May 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and he was awarded military occupational specialty 76Q (Special Purpose Materiel Supply Specialist).

4.  The applicant served in the Republic of Korea from December 1966 to January 1968 and in the Federal Republic of Germany from April 1968 to April 1970.

5.  Records indicate the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to repair.  The circumstances of his misconduct and his punishment are not in the available records.

6.  On 6 May 1971, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty.  The punishment included reduction to private first class (PFC)/E-3 (suspended) and a forfeiture of $83.00 pay per month for 1 month (suspended).

7.  On 29 September 1971, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 22 August 1971 to 23 August 1971 and from 26 August 1971 to 3 September 1971, for a total of 9 days.  His sentence consisted of reduction to private (PV1)/E-1.

8.  Records indicate that the applicant was AWOL from 22 to 28 November 1971; however, there is no evidence of punishment in the available records.

9.  On 13 December 1971, at a mental status evaluation, the applicant's behavior was passive.  He was fully alert and oriented, and displayed a depressed mood.  His thinking was clear, his thought content normal, and his memory good.  The applicant was mentally responsible and was able to distinguish right from wrong and to adhere to the right.  He did not have a psychological disease, but he did have a behavior and/or character disorder.

10.  On 14 December 1971, the applicant’s commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unsuitability due to character and behavior disorders.  The commander stated that the discharge was recommended because of the applicant’s unsatisfactory conduct and efficiency.  The applicant had been continually tardy.  His behavior was decadent and he showed a complete disrespect for military authority.  He refused to conform to military standards.  He displayed an irrational attitude of hostility against many individuals and the military structure in general.  The applicant's character and behavior disorders made him totally incompatible within the military setting.  The commander indicated that the applicant had three NJP's and one summary court-martial.  He had been advised of his rights and the commander requested waiver of rehabilitation because it was deemed unlikely that the applicant would develop into a satisfactory Soldier.

11.  On 28 December 1971, the appropriate authority waived the rehabilitation requirement and approved the recommendation for discharge.  He directed issuance of a General Discharge Certificate.

12.  Accordingly, he was discharged on 25 January 1972 under honorable conditions, in the rank/grade of PV1/E-1.  His date of rank was 29 September 1971.  He had completed 3 years, 10 months, and 17 days of creditable active service this period with 16 days of lost time due to AWOL.  He had 5 years,
7 months, and 23 days of total active service.

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

14.  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.

15.  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 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.  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 that his general under honorable conditions discharge should be upgraded to honorable and that his rank should be restored.

2.  The evidence of record shows that the applicant was reduced to PV1/E-1, effective 29 September 1971, as a result of a summary court-martial.  There is no evidence showing that he was ever eligible for advancement to any higher grade prior to his discharge.  Therefore, the applicant's request to restore his rank/grade should be denied.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case.  Therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of the Brotzman/Nelson memoranda.

5.  In view of the above, the applicant’s discharge should be upgraded to honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing that the applicant was separated from the service on 25 January 1972 with an Honorable Discharge Certificate;

   b.  issuing to him an Honorable Discharge Certificate, dated 25 January 1972, in lieu of the General Discharge Certificate of the same date now held by him; and

   c.  issuing him a new DD Form 214, effective 25 January 1972, showing his characterization of service as honorable.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoring his rank/grade.



      _________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)                                         AR20090018298



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ABCMR Record of Proceedings (cont)                                         AR20090018298



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