IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100012114 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge he made poor decisions due to the fact he was an alcoholic and the military did not recommend or offer treatment for his condition.  He also states the only recourse the military took was to transfer him to another company.  He contends that immediately following his arrival at the new unit, his new commander initiated action to bar him from further service.  He adds he was aware of the error when he was discharged.  He concludes it is difficult to stop any addiction by yourself, but he now has 36 years of sobriety and no longer uses alcohol.

3.  The applicant provides copies of his DA Form 24 (Service Record) and his 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 that after obtaining a waiver for the minor offense of underage drinking and his parents' consent, he enlisted in the Regular Army (RA) on 23 December 1958.  He completed basic combat and advanced individual training and was awarded military occupational specialty 140 (Field Artillery Basic).  The highest rank/pay grade he attained while serving on active duty was the rank of private first class/pay grade E-3.

3.  On 26 February 1960, the applicant's company commander recommended he be barred from further service in the RA, stating his repeated acts of minor misconduct rendered him undesirable.  The commander rated his conduct and efficiency as fair and provided a DD Form 789 (Unit Punishment Record) as a supporting document for his recommendation.  The battalion and regiment commanders recommend approval of the request and his bar from further enlistment or reenlistment in the RA was approved on 19 March 1960.

4.  The DD Form 789 shows the applicant received punishment for the following minor offenses:

* missing bed check
* being drunk during duty hours
* directing abusive and provocative language toward a commander of the guard relief
* being absent without leave (AWOL) for 3 hours
* being AWOL for 6 hours

5.  The applicant's record contains a DA Form 26 (Record of Court Martial Conviction) showing he was tried and convicted by summary court-martial on two occasions for violation of Article 91 of the Uniform Code for Military Justice for the following offenses:

* willfully disobeying a lawful order from a superior noncommissioned officer (NCO) to stand at attention
* being disrespectful in language toward a superior NCO
* willfully disobeying a lawful order from a superior NCO to go to bed

6.  The applicant's record contains a letter of certification rendered by a military psychiatrist assigned to the U.S. Army Hospital located in Frankfurt, Germany, on 7 November 1960 as part of the pre-separation process under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).  He noted the unit was considering such separation based upon the belief the applicant's efficiency was unsatisfactory and that he was "eternally interested in horseplay and is [was] constantly insubordinate to NCO's."  The examining psychiatrist diagnosed the applicant with having chronic moderate emotional instability.  He was found to have evidence of chronic personality problems and significant long-term emotional instability.

7.  The psychiatrist further opined the applicant's condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another station or organization, or reclassification to another type of duty.  He recommended that should the command feel the applicant's performance no longer justified retention, he should be separated under the provisions of Army Regulation 
635-209 for inability to adjust due to a chronic underlying personality disorder.

8.  On 21 November 1960, the applicant's unit commander notified him of the initiation of separation action against him under the provisions of Army Regulation 635-209.  The applicant was advised that the primary basis for this action was his apathetic attitude toward his daily work and his insubordination toward NCO's.

9.  The commander informed the applicant he had the right to present his case before a board of officers, submit statements in his own behalf, to be represented by counsel, or to waive any or all of these rights in writing.  The applicant was also advised that legally-qualified counsel was available to advise him of the basis for the contemplated separation action.  The applicant acknowledged receipt of this notification and was advised by counsel on 21 November 1960.  The applicant declined and waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, to submit statements in his own behalf, and representation by legal counsel.  He also acknowledged his understanding that in the event an undesirable discharge was issued to him, he could expect to encounter substantial prejudice in civilian life.

10.  On 21 November 1960, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 653-209 because of his apathetic attitude toward his daily work and his insubordination toward NCO's.  He noted the applicant's unsatisfactory duty performance and disciplinary history. 
He also stated the applicant drank to a degree that he lost what reason he possessed, which was also limited.  His immaturity and excessive drinking and the impact they had on his decision making and duty performance were also mentioned several times in the supporting statements provided by officers and NCO's with whom he served.

11.  On 10 December 1960, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 with separation program number (SPN) 264 by reason of unsuitability due to character and behavior disorders and directed he receive a DD Form 257A (General Discharge Certificate).

12.  On 14 January 1961, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was discharged under the provisions of Army Regulation 635-209 with SPN 264.  He was credited with a total of 2 years and 22 days of creditable active service with no lost time.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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:  (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  It 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 a personality disorder (formerly known as character and behavior 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, 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.

16.  A second memorandum, dated 8 February 1978, 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.  The conviction by a 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.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was honorably discharged because at the time of his discharge he was under the influence of alcoholism.

2.  The evidence shows the applicant's only documented disciplinary actions were for minor offenses.

3.  The evidence shows the applicant was examined by a psychiatrist.  The examining psychiatrist diagnosed the applicant with having chronic moderate emotional instability.  He was found to have evidence of chronic personality problems and significant long-term emotional instability.

4.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  The evidence of record shows that historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant's military service records should be corrected to show he was honorably discharged effective 27 March 1969 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

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 14 January 1961, in lieu of the General Discharge Certificate of the same date now held by him and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      ____________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)                                         AR20100012114



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ABCMR Record of Proceedings (cont)                                         AR20100012114



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