BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021561 


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 discharge to a fully honorable discharge.

2.  The applicant states that the witnesses against him were discredited and he had won his court-martial.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty).

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 28 August 1974, the applicant enlisted in the Regular Army.  He completed his initial training and was subsequently awarded military occupational specialty 75D (Personnel Records Specialist).

3.  The applicant accepted the following nonjudicial punishments (NJP's):

	a.  17 September 1974 for disobeying a lawful order;

	b.  12 October 1974 for disobeying a lawful order;

	c.  28 January 1975 for being disrespectful in language and for failure to go to his appointed place of duty at the time prescribed;

	d.  21 May 1975 for being absent without leave (AWOL) from 28 March to 
16 May 1975;

	e.  3 November 1975 for violating a lawful general regulation, being disrespectful in language, and disobeying a lawful order; and

	f.  20 January 1976 for disobeying a lawful general regulation.

4.  On 21 November 1975 a medical examination found him to be qualified for separation with a physical profile of 1-1-1-1-1-1-1.  At a mental status evaluation on 24 November 1975, the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

5.  On 24 November 1975, the Chief of Psychiatry, Community Mental Health Center, Fort Devens, Massachusetts, stated that the problems presented by the applicant were best characterized as a personality disorder.  It was specifically identified as an asocial personality.  The psychiatrist recommended an inter-post rehabilitative transfer with follow-up therapy.  He further recommended that if rehabilitative efforts failed, the applicant should be separated due to a personality disorder.

6.  On 1 December 1975, the applicant's commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, Chapter 13, for unfitness.

7.  On 21 January 1976, a board of officers convened under the provisions of Army Regulation 635-200 to consider the applicant for separation.  After careful consideration, the board determined that the applicant's acts were the result of a personality disorder and that rehabilitation was not deemed possible.  The board recommended that the applicant be separated for unsuitability and issued a DD Form 257A (General Discharge Certificate).

8.  On 19 February 1976, the appropriate authority approved the recommendation and directed that he be discharged under the authority of Army Regulation 635-200, paragraph 13-5b(2) due to unsuitability.

9.  On 26 February 1976, the applicant was accordingly discharged.  He had completed 1 year, 4 months and 8 days of creditable active service and had 
57 days of lost time due to AWOL and confinement.

10.  Army Regulation 635-200 (Personnel Separations), chapter 13 applied to separation for unfitness and unsuitability.  At that time, it provided for separation due to inaptitude, personality disorder, apathy, and homosexuality.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  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.

11.  Army Regulation 635-200 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.  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 discharge should be upgraded to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant was separated due to a personality disorder with a general discharge in accordance with the regulation in effect at the time.  However, it now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

5.  Therefore, it would be appropriate to grant the applicant's request for an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x_____  ___x___  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.  showing the applicant was separated from the service with an Honorable Discharge Certificate on 26 February 1976;

	b.  issuing the individual an Honorable Discharge Certificate, dated 
26 February 1976, in lieu of the general discharge of the same date now held by him; and

	c.  issuing him a new DD Form 214, effective 26 February 1976, showing his characterization of service as honorable.



      __________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)                                         AR20090021561





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ABCMR Record of Proceedings (cont)                                         AR20090021561



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