IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100000090 


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, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he went absent without leave (AWOL) because of marital, family and child care problems.  His personal problems coupled with his education level and childhood upbringing were the main causes of his inability to serve in the Army.  He contends that in order to provide for his pregnant wife he left school after completing the 8th grade and joined the Army. 

3.  The applicant adds that his son was born on 14 September 1971 and a family member notified the Red Cross which in turn notified his company commander at the time.  He contends that he was originally told to report to the commander's office and to gather his personal belongings because he was going on leave to be with his wife during her time of medical difficulties.  Once he arrived at the commander's office he was told to take his belongings back because he was not going anywhere.  When he confronted the commander about the change in plans, the commander told him that the Red Cross called and said that his mother-in-law was able to handle everything and he was no longer needed.

4.  He contends that he became very depressed and disappointed when he was unable to go home and thus the beginning of his family problems started.  He states that he and his wife starting growing farther apart.  He could see from the letters that he was needed at home or he was going to end up divorced.  He was granted a 3 day leave by the company commander of which he was very appreciative but he failed to report back to the unit once his leave ended.  Sometime later, he was ordered to return to the barracks and was counted AWOL.  He contends that upon his return he underwent a summary court-martial in which he appeared before a full board and was fined for his misconduct of going AWOL.  

5.  He states, in effect, that his command granted him a GD under honorable conditions due to his family problems.  He adds that he raised 4 children and has been married 36 years.  He has retired as a Lieutenant after 31 years of working at the state correctional institution.  He also was the direct supervisor for more than 86 officers.   

6.  He ends his comments by stating, in effect, that he feels he was very young and immature when he joined the Armed Forces and with his 8th grade education, he made some decisions that were not right.  He contends that he is very honored that the Armed Forces granted him a general discharge with honorable conditions instead of placing him in jail and charging him as a deserter.  

7.  The applicant provides a copy of his resume, a copy of his separation packet under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability), a copy of a page from a self-help guide to discharge upgrades, a letter from the Allen County Veterans Office, dated 
10 December 2009, and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 entered active duty on 13 September 1971, at the age of 18.  He successfully completed basic combat training at Fort Ord, CA. 

3.  The applicant’s record reveals ORD Form 225 (Discharge for Unsuitability) that provides a history of his performance and conduct.  During the period 
1 November 1971 through 23 January 1972 he was a trainee at the United States Army Training Center (USATC) Fort Lewis, WA and his conduct and efficiency were rated as "excellent."  On or about 24 January 1972, the applicant's performance began to decline and he was rated as "unsatisfactory."  This form shows he was dropped from the rolls (DFR) as a deserter on 4 March 1972 and later returned from DFR status on 20 March 1972.  He had one conviction by summary court-martial. 

4.  A psychiatric evaluation was completed on the applicant on 23 March 1972.  The examining physician found the applicant suffered from an emotionally unstable personality (with passive features) and diagnosed the applicant with a character and behavior disorder. 

5.  On 23 March 1972, the applicant was notified by his unit commander that separation action on him was being contemplated.  On 30 March 1972, the applicant’s unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  The unit commander cited the applicant’s marital problems as the basis for separation.  

6.  On 5 April 1972, the applicant consulted legal counsel and was advised of the basis for his contemplated separation for unsuitability, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to the 48 hour waiting period between the notice of rights and signing of the statement of counseling.  He also waived his right for consideration of his case by a board of officers, personal appearance before a board of officers and he elected not to submit a statement in his own behalf.  
 
7.  On 10 April 1972, the separation authority approved the applicant’s discharge under the provisions of paragraph 6b(2), Army Regulation 635-212, by reason of unsuitability (character and behavior disorder), and directed that the applicant receive a GD.  On 2 May 1972, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant at the time confirms he completed a total of 7 months and 8 days of net active service and accrued 42 days of time lost due to AWOL.  This document further shows the applicant was assigned a Separation Program Number (SPN) of 264, which reflected a character and behavior disorder separation.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.
10.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under these provisions could receive either an HD or GD.

11.  On 23 November 1972, Army Regulation 635-200 (Enlisted Personnel) was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  A Department of the Army (DA) message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976.  

12.  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, 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 (SPCM) was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

13.  Army Regulation 635-200, currently in effect, paragraph 5-13, provides when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one SPCM during the current enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under the unsuitability (character and behavior disorder) provisions of Army Regulation 
635-212.  It further shows that his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.  

2.  The applicant was discharged prior to the implementation of the Nelson Memorandum, which 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.  Under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD unless they have been convicted by a general court-martial or more than one SPCM.  Therefore, given the applicant’s disciplinary record does not rise to a level that supports a GD, his discharge is too harsh under current standards and in the interest of equity should be upgraded to an HD.  

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 showing he received an honorable discharge on 2 May 1972, in lieu of the general, under honorable conditions discharge of the same date he now holds and issuing him a new DD Form 214 that reflects these changes.  



      _______ _   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)                                         AR20100000090





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)