IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018701 


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 an honorable discharge.  He also requests, in effect, correction of item 22a(1) (Net Service This Period), item 22a(3) (Total), and item 22b (Total Active Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states:

* it was a clerical error
* when he was placed into confinement he had completed 3 months and 26 days of active duty service
* after his release from confinement he was assigned to the Special Processing Detachment and he worked as a company clerk for 77 days pending discharge
* he was not credited with the 77 days he served after his release from confinement
* in addition to a discharge upgrade he would like his records corrected to show he completed 193 days (6 months and 13 days)

3.  The applicant provides a copy of his DD Form 214.

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 was inducted into the Army of the United States on 1 March 1966.  While in basic combat training he went absent without leave (AWOL).

3.  On 28 July 1966, the applicant was convicted by a special court-martial of three specifications of being AWOL (from 26 March 1966 to 20 April 1966, 
23 April 1966 to 28 May 1966, and 4 June 1966 to 30 June 1966), and breaking arrest.  He was sentenced confinement at hard labor for 6 months and forfeiture of $30.00 pay per month for 6 months.  On 11 August 1966, the convening authority approved the sentence.  On 27 August 1966, the unexecuted portion of the sentence to confinement at hard labor was suspended until 27 January 1967.  On 15 February 1967, the suspended unexecuted portion of the sentence was also vacated.

4.  On 23 February 1967, the applicant was convicted by a special court-martial of being AWOL from 6 November 1966 to 30 December 1966.  He was sentenced to confinement at hard labor for 6 months.  On 28 February 1967, the convening authority approved the sentence.

5.  On 4 August 1967, the applicant underwent a psychiatric examination and was diagnosed with a passive-aggressive personality, chronic, moderate to severe, and manifested by passive obstructionism, stubbornness, procrastination, impulsivity, and use of poor judgment.  The psychiatrist found him to be mentally responsible and he was psychiatrically cleared for any action deemed appropriate by his command.

6.  Orders, dated 11 September 1967, show the applicant was released from confinement and returned to duty effective 15 September 1967.

7.  On 27 September 1967, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The commander based his recommendation for separation on the applicant's severe personality disorder.
8.  On 27 September 1967, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

9.  On 30 September 1967, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
10.  Accordingly, the applicant was discharged on 3 October 1967 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorder.  He had served a total of 3 months and 26 days of creditable active service with 457 days of lost time.     

11.  Item 10c (Date Inducted) on the applicant's DD Form 214 shows he entered active duty on 1 March 1966.  Item 11d (Effective Date) on the applicant’s DD Form 214 shows he was discharged on 3 October 1967.  Items 22a(1), 22a(3), and 22b of his DD Form 214 shows he completed 3 months and 26 days.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows the entry “457 days.”

12.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [expiration term of service]) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he had 457 days of lost time during the period 26 March 1966 to 15 September 1967.

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

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  
Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

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 was 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.

16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation, in effect at the time, stated, in pertinent part, that time lost under Title 10, U.S. Code, section 972, and time lost subsequent to normal ETS will be subtracted from item 22a(1).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation on 3 October 1967 was accomplished in accordance with regulations then in effect.

2.  The applicant was diagnosed with a passive-aggressive personality disorder by a psychiatrist and recommended for separation due to a character and behavior disorder.

3.  In view of the foregoing, it appears the above-mentioned memoranda should be applied to his case and considered for review for upgrade.  However, the applicant’s record of service included two special court-martial convictions for numerous AWOL periods and breaking arrest.  Since the Nelson Memorandum states that conviction by more than one special court-martial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge, it appears a general under honorable conditions discharge was and still is appropriate in this case.  Therefore, there is no basis for granting the applicant's request for an honorable discharge.

4.  Evidence of record shows the applicant's total service extended from 1 March 1966 to 3 October 1967 for a period of 1 year, 7 months, and 2 days.  However, he had 457 days of time lost.  His time lost was appropriately subtracted from his total service in accordance with the governing regulation.  As a result, items 22a(1), 22a(3), and 22b on his DD Form 214 correctly shows he completed 3 months and 26 days of creditable service.  Therefore, there is no basis for granting the applicant’s request to amend items 22a(1), 22a(3), and 22b of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090018701



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ABCMR Record of Proceedings (cont)                                         AR20090018701



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