IN THE CASE OF:	  

		BOARD DATE:	    1 June 2010

		DOCKET NUMBER:  AR20090020665 


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 his general, under honorable conditions discharge be upgraded to an honorable discharge.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as follows:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) to show specialist five (SP5)/E-5 instead of private first class (PFC)/E-3

* Item 15 (Reenlistment Code) to show "RE-5" instead of "RE-3"

* Item 28 (V.A. (Veterans Administration) Claim Number) to show the entry xxx-xx-774 instead of NA (Not Applicable)

* Item 23 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) to show the Expert Marksmanship Qualification Badge with Grenade and Pistol Bars

* Item 30 (Remarks) should show his blood type as "O positive"

2.  The applicant states that the evidence for his corrections should be in the day records of his unit in Vietnam.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 he enlisted in the Regular Army for a period of 3 years on 15 October 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 52B (Power Plant Operations Mechanic). 

3.  On 28 January 1970, while attending MOS training at Fort Blevoir, VA, his unit prepared a DA Form 2496-1 (Disposition Form) announcing his promotion to private/E-2.

4.  Subsequent to MOS training, he was reassigned to Vietnam on or about 20 May 1970.  He was assigned to Headquarters and Headquarters Battery (HHB), 1st Battalion, 14th Artillery.

5.  On 22 May 1970, HHB, 1st Battalion, 14th Artillery, published Unit Orders Number 30 promoting him to PFC/E-3 effective 22 May 1970.

6.  On 8 July 1970, he was transferred to Camp Zama, Japan, as a patient, and on 13 July 1970, he was transferred back to the United States where he was admitted to Valley Forge General Hospital, Phoenixville, PA.

7.  On 21 July 1970, he underwent a psychiatric evaluation at the Valley Forge General Hospital.  The military psychiatrist indicated the following:  

	a.  The applicant became hysterical in Vietnam and felt he was going to die because six of his friends from his hometown had already died.  He was hospitalized and did well in the hospital; however, he claimed to have hallucinations which were never borne out and seemed to be embellishments of his story.  He did well as long as return to duty was not mentioned.  Any time his return to duty was mentioned, he would cry and behave in a bizarre fashion.  He continued to do well in the United States; however, as soon as return to duty was mentioned, he refused and threatened to go in an absent without leave (AWOL) status.  He was a regular user of marijuana in Vietnam.  He was completely unmotivated for further service and it was felt any attempt to return him to duty would result in instantaneous AWOL.  

	b.  The applicant was found mentally responsible both to distinguish right from wrong and to adhere to the right, and that his condition was not amenable to hospitalization, treatment, disciplinary action, training, or transfer.  He recommended no further attempt at rehabilitation because further rehabilitation efforts would have probably been non-productive.

	c.  His diagnosis was that of a character and behavior disorder by reason of immature personality.  

8.  On 12 August 1970, his immediate commander notified him by memorandum that he was being recommended for separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability. He acknowledged this notification on the same date.

9.  On 14 August 1970, he consulted with counsel regarding the pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.  He further indicated he understood that if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

10.  Subsequent to consulting counsel, his immediate commander initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability (character and behavior disorder, immature personality).  The immediate commander recommended the issuance of a General Discharge Certificate.  

11.  On 20 August 1970, the separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212 and directed he be issued a DD Form 257A (General Discharge Certificate) and his DD Form 214 be coded RE-3B.  Accordingly, he was discharged on 28 August 1970.  

12.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-212 with an under honorable conditions character of service and that he completed 10 months and 14 days of creditable active military service.  This form further shows:
* Items 5a and 5b show the entries PFC/E-3 and item 6 (Date of Rank) shows the entry 22 May 1970

* Item 13 shows the National Defense Service Medal, the Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge

* Item 15 shows the entry "RE-3"

* Item 18 shows his blood type as "O"

13.  His medical records are not available for review with this case.  Additionally, there is no indication he filed a VA claim prior to or at the time of his discharge from active duty.

14.  His record is void of official orders showing he was promoted to the rank/grade of specialist four (SP4)/E-4 or SP5/E-5.  Additionally, item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows PFC/E-3 as the highest rank/grade he held. 

15.  His record is void of official orders, memorandums, disposition forms, or other documents that show he qualified with the grenade or pistol and/or the level of his qualification.

16.  There is no evidence in the available record that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 (Personnel Separations) was directed.

18.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 635-200, which superseded Army Regulation 635-212, 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.

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contained guidance on the preparation of the DD Form 214, as follows: 

a.  Item 5a shows the permanent or temporary grade in which the enlisted 
Soldier was serving at time of separation; item 5b shows the enlisted Soldier’s
pay grade (e.g., E-8, E-4); and item 5c shows the date of rank or the grade 
shown in Item 5a;

	b.  Item 11c (Reason and Authority) shows the authority for separation.  The regulation in effect at the time stated that the authority for transfer or discharge would be entered in item 11c by reference to the appropriate regulation, circular, bulletin, statute, etc. followed by the SPN (Separation Program Number) and descriptive reason for transfer or discharge.  However, when the reason for discharge was unsuitability, inaptitude, unfitness, misconduct, homosexuality, resignation in lieu of elimination, or any other reason involving mental or moral issues upon which the discharge of the individual could be predicated, the reason would not be stated in words on the DD Form 214.  Instead, the authority and SPN would be entered in item 11c;

	c.  Item 15 shows the reenlistment code;

	d.  Item 28 shows the VA claim number, if one has been assigned to the individual (at the time of separation/discharge) and it may be obtained from any correspondence he has received with benefits for which he has previously applied; and

	e.  Item 30 is used for entries too long for their respective items as well as required entries.  The blood group, obtained from the Immunization Record (Standard Form 601), may be entered in item 30, e.g. "Blood Group O."

21.  Army Regulation 601-210 (Regular Army Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment from civilian life of persons with or without prior service into the Regular Army.  It stated Soldiers with prior service in any of the armed forces must meet basic eligibility criteria for reenlistment: 

* An RE-1 is used for Soldiers fully qualified for immediate reenlistment

* An RE-2 is used for Soldiers fully qualified for reenlistment but separated for the convenience of the Government under a separation which did not contemplate immediate reenlistment 

* An RE-3 is used for Soldiers not eligible for reenlistment unless a waiver is granted.  If the DD Form 214 is so coded, it must cite appropriate authority for separation and "Army Regulation 601-210" applies will be entered in item 30 

22.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 

23.  Army Regulation 600-8-22 (Military Awards) provides for military awards, decorations, and badges.  Chapter 8 states that the purpose of awarding badges is to provide for public recognition by tangible evidence of the attainment of a high degree of skill, proficiency, and excellence in tests and competition, as well as in the performance of duties.  Marksmanship badges and tabs are awarded to indicate the degree in which an individual has qualified [emphasis added] in a prescribed record course and an appropriate bar is furnished to denote each weapon with which he or she qualified.  Each bar will be attached to the basic badge that indicates the qualification last attained with the respective weapon.  Basic qualification badges are of three classes:  Expert, Sharpshooter, and Marksman.  Orders were required during his period of service; however, they are no longer required for award of the marksmanship qualification badges.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded and that his DD Form 214 should show his correct grade, awards, VA claim number, and RE code.

2.  With respect to the applicant's discharge, the evidence of record shows he underwent a psychiatric evaluation subsequent to a hysterical episode in Vietnam.  He was completely unmotivated for further service and it was felt any attempt to return him to duty would have resulted in instantaneous AWOL.  The military psychiatrist diagnosed him with a character and behavior disorder by reason of immature personality.  Accordingly, his chain of command initiated elimination action against him by reason of unsuitability.  

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with his overall record of military service.  The reason for his discharge and the characterization of service were both proper and equitable at the time.  However, it now appears his overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.  Therefore, he is entitled to correction of his records to show an honorable discharge.

4.  With respect to his rank and grade, the evidence of record shows he was promoted to PFC/E-3 on 22 May 1970 and held this rank/grade until separation.  There is no evidence in his service records and he did not submit any substantiating evidence that shows he was promoted or appointed beyond this rank/grade prior to his discharge.  Therefore, there is insufficient evidence to correct his rank/grade.

5.  With respect to his marksmanship badges, there is no evidence in the available record and he did not provide any evidence that shows he qualified with the requested weapon systems or was awarded any marksmanship badges at the time.  In the absence of orders or any other documentary evidence such as a memorandum, letter, roster, or other locally devised form, showing the date and class of qualification, there is insufficient evidence to grant the applicant relief. 

6.  With respect to his RE code, there is no RE-5.  The evidence of record confirms his RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability and assigned SPN 264.  The separation authority ordered his DD Form 214 be coded with RE-3.  Individuals assigned an SPN 264 are ineligible for immediate enlistment or reenlistment in the Regular Army.  However, this does not mean a member could not come back at a later date and request a waiver to reenter the military, if otherwise qualified.  

7.  With respect to his VA entry, there is no evidence in the available record and he did not provide substantiating evidence that shows he filed a VA claim prior to or on the date of his discharge.  It appears that he filed a VA claim for benefits at a later date, subsequent to his discharge.  There is no provision to list this claim on a previously issued DD Form 214.

8.  With respect to his blood type, his medical records are not available for review with this case.  In the absence of his Standard Form 601 that would have listed his blood type at the time, it must be presumed that the entry is correct and in accordance with applicable regulation at the time.  Additionally, the entry is correctly shown on his DD Form 214 as per applicable regulation at the time.

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 he was discharged from the service with an honorable discharge on 28 August 1970; and 

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 28 August 1970, in lieu of the general, under honorable conditions discharge of the same date now held by him.

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 his rank/grade; awards, medals, and badges; RE code; VA claim; and blood type.




      _______ _   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)                                         AR20090020665



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ABCMR Record of Proceedings (cont)                                         AR20090020665



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