IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012567 


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 that his general discharge be upgraded to fully honorable. 

2.  The applicant states there were no grounds for his discharge.

3.  The applicant provides a copy of 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 records show he enlisted in the Regular Army for a period of 3 years on 17 November 1958.  He completed training and was awarded military occupational specialty 951.10 (Military Police).  The highest rank/grade he attained during his period of military service was private/E-2.

3.  His records further show he served in Korea from on or about 13 July 1959 to 14 June 1960.  He was assigned to Headquarters, 728th Military Police Battalion.

4.  On 11 January 1960, he pled guilty at a special court-martial to one specification of dereliction in the performance of his duties in that he failed to connect the brake line from the vehicle he was driving to a water trailer being towed.  The court sentenced him to confinement at hard labor for 2 months and a forfeiture of $50.00 pay for 2 months.  The convening authority approved his sentence on 12 January 1960 but suspended the confinement for 2 months. 

5.  On 29 March 1960, he underwent a psychiatric evaluation subsequent to various incidents of being involved in fights with other men and being on the verge of serious trouble several times.  On examination, he was diagnosed as depressed, tense, and anxious.  He showed little control over his hostility and had an aggressive reaction.  The examining psychiatrist recommended that the applicant be separated and indicated he had no mental defects sufficient to warrant disposition under medical channels.  

6.  On 16 April 1960, by statement, the applicant's platoon sergeant indicated the applicant had been in trouble several times since assignment to his platoon on 1 March 1960.  He was relieved from guard duty for choking and threatening a Korean Augmentee to the United States Army (KATUSA) who was on guard with him.  On another occasion, he was absent from reveille.  The platoon sergeant described the applicant as careless with equipment, unreliable, and in need of constant supervision.  

7.  Following the platoon sergeant's statement, the platoon leader also indicated the applicant had been a constant problem in the platoon despite having been given different assignments in order to aid him in adjusting to the military; however, these efforts were proven unsuccessful.  He was unreliable and incapable of performing his duties in a satisfactory manner. 

8.  On 16 April 1960, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-209 (Personnel Separations) for unsuitability.  


9.  On 16 April 1960, the applicant acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.  He indicated he fully understood that if the discharge authority approved the recommendation for discharge, the discharge authority would determine the type of discharge he would receive.  He finally indicated he voluntarily signed this acknowledgement of his own free will. 

10.  On 30 April 1960, the applicant's immediate commander initiated separation actions against the applicant under the provisions of Army Regulation 635-209 by reason of unsuitability.  The immediate commander stated the applicant was unfit for military service.  He was involved in a traffic accident that caused the death of a Korean child and was subsequently court-martialed to smooth the relations between U.S and Korean forces.  As a result, he developed an extreme hatred of Korean Nationals.  He was involved in incidents with KATUSAs on several occasions and his attitude towards the military was deteriorating.  He had no capability of becoming a professional Soldier.  He required constant supervision and he was undependable, untrustworthy, and unreliable.  His discharge was in the best interest of the Army and the unit.

11.  On 11 May 1960, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 17 June 1960.  The DD Form 214 he was issued shows he completed a total of 1 year, 7 months, and 1 day of creditable active military service.  He was assigned separation program number (SPN) 264.

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

13.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability 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 inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

14.  Army Regulation 635-200, which superseded Army Regulation 635-209, 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.

15.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "264" was the correct code for Soldiers separating 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 discharge should be upgraded.

2.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes several statements from various members of his chain of command to include his platoon sergeant and leader, who stated the applicant essentially lacked maturity, had no desire to remain in the Army, and needed constant supervision.  Accordingly, his immediate commander initiated separation action against him.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

3.  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.

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.  showing the individual concerned was separated from the service with an honorable discharge on 17 June 1960;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 17 June 1960, in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him 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)                                         AR20100012567



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ABCMR Record of Proceedings (cont)                                         AR20100012567



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