IN THE CASE OF:	

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011485 


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 discharge (GD) issued on
4 August 1972 to an honorable discharge (HD).

2.  The applicant states his discharge was unjust and the result of his being a Vietnam veteran.  He claims he received a valor award and he was wounded in action and received the Purple Heart, and that based on his 5 years of excellent service he should have received an HD.

3.  The applicant provides a Congressional Inquiry and self-authored statement.

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 initially enlisted in the Regular Army on
15 July 1966.  He served for 2 years, 4 months, and 12 days until 26 November 1968, at which time he was honorably discharged, in the rank/grade of specialist five (SP5)/E-5, for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) documenting his honorable active duty service for this period of service.  On
27 November 1968, he reenlisted for 6 years.

3.  The applicant served for an additional 1 year, 8 months, and 16 days until 
12 August 1970, at which time he was again honorably discharged, in the rank/grade of SP5/E-5, for the purpose of immediate reenlistment.  He was also issued a DD Form 214 documenting this period of honorable active duty service for this period of service.  On 13 August 1970, he again reenlisted for 6 years.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he completed two tours of duty in the Republic of Vietnam (RVN) totaling 52 months.  His first tour was from 15 July 1967 through 27 March 1970 and his second tour was from 18 October 1970 through 25 August 1971.  It also shows he held and served in military occupational specialty (MOS) 51B (Carpenter).

5.  The applicant’s record shows he was promoted to SP5/E-5 on 19 March 1969 and that this is the highest rank/grade he attained while serving on active duty.  It also shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Army Commendation Medal (1st Oak Leaf Cluster) with “V” Device 
* Purple Heart 
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* 7 Overseas Service Bars
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

6.  The applicant’s disciplinary history during the enlistment under review shows that on 1 November 1971 he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 21 through 27 October 1971.  His punishment for this offense was a forfeiture of $50.00.  It also shows on 22 March 1972, a special court-martial (SPCM) found him guilty of violating Article 86 of the UCMJ by being AWOL from 2 December 1971 through 10 January 1972.  The resulting sentence was a reduction to private (PV2)/E-2.


7.  The unit commander notified the applicant that he was considering him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The applicant acknowledged notification of his possible discharge and of his rights in this matter.  On 19 July 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, and of the rights available to him in connection with the separation action.  Subsequent to this counseling, the applicant waived his rights to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 26 July 1972, the Fort Devens, MA, Community Mental Health Center (CMHC) Psychiatrist completed an evaluation of the applicant in connection with the proposed discharge action.  The psychiatrist confirmed the applicant was diagnosed with a Passive-aggressive personality with depressive features.  He further confirmed the applicant met the medical retention standards of Army Regulation 40-501, he was mentally responsible, he could distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He finally stated the applicant had a longstanding, duly diagnosed character and behavior disorder that provided a basis for his elimination for unsuitability.

9.  The unit commander subsequently recommended the applicant’s separation under the provisions of Army Regulation 635-212, by reason of character and behavior disorder.

10.  On 28 July 1972, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-212 and directed he receive a GD and assignment of special program number (SPN) 264 [Unsuitability, character and behavioral disorders].  On 4 August 1972, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he completed a total of 1 year, 2 months and 19 days of net service this period for a total of 6 years and 15 days of active service, with
44 days of time lost due to AWOL.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. 


12.  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 a GD.

13.  Department of the Army Message #302221Z, March 1976 changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), the basic regulation governing the separation of enlisted personnel, was revised on 1 December 1976.  These changes contained policy guidance in regard to the processing of separations based on personality disorders, and specifically established the requirement that a personality disorder diagnosis had to be made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum, dated 14 January 1977, better known as the Brotzman Memorandum, was promulgated.

14.  The Brotzman Memorandum 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.

15.  Department of Defense Instruction (DODI) 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. 

16.  Enclosure 4 of the current DODI 1332.28 provides discharge review standards and paragraph E4.3 provides guidance on equity determinations.  It states, in pertinent part, that if during the review of a discharge, it is determined there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of discharge proceeding under consideration, the discharge is inequitable.


17.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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 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 applicant's contention that his discharge should be upgraded because it was unjust given his overall record of service, including his combat service in the RVN that resulted in his receiving a valor award and the PH, has been carefully considered and found to have merit.

2.  The evidence of record confirms the majority of the applicant’s service was honorable, as evidenced by his extensive combat service and his receipt of a valor award.  Further, the record confirms he was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder), as evidenced by the separation packet and SPN listed on his DD Form 214.

3.  Although DODI 1332.28 provides policy for review of discharges for Discharge Review Boards, it is appropriate that this Board adopt and apply the standards set forth in this DODI for this particular case.  In view of these current standards for discharges issued because of a personality disorder, a GD is inequitable in this case.  Therefore, it would now be appropriate to correct this inequity and issue the applicant 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:

   a.  voiding his DD Form 214 for the period ending 4 August 1972; and 

   b.  issuing him a new DD Form 214 and an Honorable Discharge Certificate of the same date in lieu of the General Discharge Certificate now held by the applicant.



      ___________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)                                         AR20100011485



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ABCMR Record of Proceedings (cont)                                         AR20100011485



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