IN THE CASE OF:	

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007446 


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, through his Senate representative, upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states that he needs his GD upgraded to an HD.

3.  The applicant provides a copy of his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge) for the period ending 23 June 1972; a privacy act statement to his U.S. Senator, dated 29 December 2009; and letter from his U.S. Senator, dated 29 December 2009, forwarding 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.  The applicant’s military record shows he enlisted in the Regular Army on
22 January 1971.  He was trained in and awarded military occupational specialty (MOS) 36C (Lineman).

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four separate occasions.  It also shows he was formally counseled twenty times during the period 28 June 1971 to 17 August 1972, for a myriad of disciplinary infractions that include:

* missing formation
* being absent without leave (AWOL)
* uniform violations
* possession and use of drugs
* poor work performance
* refusal to report to guard duty
* missing movement
* suspected auto theft and larceny of boots

4.  On 5 June 1972, the applicant's unit commander notified him of his intent to initiate action to affect his discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability.  The applicant waived his right to consult with legal counsel; however, he was accordingly counseled by his unit commander.  The applicant was advised of the basis for the contemplated separation for unsuitability and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by military or civilian counsel.  He also elected not to submit a statement in his own behalf.

5.  On 7 June 1972, the applicant’s unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212, by reason of unsuitability based on inaptitude, character and behavior disorder, and apathy.  The unit commander cited the following reasons as the basis for the separation action:

* the applicant’s four NJP actions and 20 records of counseling
* for being a source of trouble throughout his assignments to three different platoons
* established pattern of shirking his fair share of the work
* 
continual lateness for work or leaving place of duty
* disgraceful living area in the barracks

6.  On 10 June 1972, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unsuitability, with issuance of a General Discharge Certificate.  On 23 June 1972, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant at the time shows he completed
1 year, 4 months, and 29 days of total active service.  This document further shows in item 11c (Reason and Authority) the applicant was assigned a separation program number (SPN) code of 264, which indicated a character and behavior disorder separation.  Item 13a (Character of Service) shows he received an under honorable conditions [general] discharge.  Item 13b (Type of Certificate Issued) shows he was issued a DD Form 257A [General Discharge Certificate].

8.  There is no available Mental Status or Psychiatric Evaluation Report.

9.  There is no evidence of record to show that the applicant made a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations - 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.” 

12.  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 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.

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

14.  Department of Defense (DoD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

15.  Army Regulation 635-200, currently in effect, paragraph 5-13 provides, in pertinent part, 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 have been convicted of an offense by general court-martial or convicted by more than one SPCM during the current enlistment.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of the applicant’s discharge stipulated that the 

SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to an HD.

2.  The evidence of record confirms the applicant was separated under the unsuitability (character and behavior disorder) provisions of the regulation in effect at the time.  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.

3.  The Nelson Memorandum 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 should be upgraded to an HD in the interest of equity.

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:

   a.  issuing the applicant an Honorable Discharge Certificate, dated
23 June 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant;
	b.  issuing the applicant a new DD Form 214 that shows in item 13a the entry "HONORABLE" and in item 13b the entry "DD FORM 256A."



      __________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)                                         AR20100007446



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ABCMR Record of Proceedings (cont)                                         AR20100007446



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