IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013266 


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 to an honorable discharge.

2.  The applicant states his general discharge under honorable conditions should be upgraded to fully honorable based on a review of his records

3.  The applicant provides no additional documentary evidence in support of his request.

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 enlisted and entered active duty in the Regular Army for a period of 2 years on 12 February 1969.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was assigned overseas and served in Vietnam from 11 July 1969 through 26 January 1970.

4.  The applicant's military records contain copies of three DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), that show he received nonjudicial punishment (NJP) under Article 15, UCMJ:

   a.  on 4 June 1969, for being absent without leave (AWOL) from his unit from 1 June to 3 June 1969;

	b.  on 10 June 1969, for failing to obey a lawful order by gambling in the barracks on 8 June 1969; and

	c.  on 19 December 1969, for being AWOL from 6 November to
13 November 1969 and AWOL from 17 November to 28 November 1969.

5.  Headquarters, 1st Battalion, 27th Infantry (The Wolfhounds), Special Court-Martial Order Number 27, dated 3 November 1969, shows the applicant was tried at a special court-martial.

   a.  He pled guilty and was found guilty of the charge and specification of, on 19 October 1969, willfully disobeying a lawful command from his superior commissioned officer to go on an operation.

   b.  On 27 October 1969, he was sentenced to forfeit $82.00 pay per month for six months, reduction to the grade of private (E-1), and confinement at hard labor for six months.
   
   c.  On 3 November 1969, the convening authority approved and executed the sentence, except that the confinement at hard labor for six months was suspended for six months.

   d.  On 28 November 1969, the suspended portion of the sentence to confinement at hard labor for six months was vacated and ordered duly executed.


6.  A Report of Psychiatric Evaluation shows the applicant was evaluated by a psychiatrist at the U.S. Army Vietnam, Installation Stockade, on 5 January 1970.
   
   a.  The psychiatrist's diagnosis of the applicant was "Passive-Aggressive Personality, chronic severe manifested by irresponsibility, resistance of authority, passive obstructionism and inefficiency."

   b.  The psychiatrist stated, "[the applicant] is completely unmotivated for further duty and extremely negativistic toward the military.  He displays a rather longstanding life style of stubborn resistance of authority and insists that he is fed up with the Army and will no longer soldier.  His judgment is impaired, insight is lacking and his personal resources both social as well as intellectually are limited.  This man would undoubtedly repeat a similar pattern of misbehavior if retained and should definitely be separately [sic] at this time."

   c.  The psychiatrist recommended the applicant be administratively separated from military service under the provisions of Army Regulation 635-212 [Personnel Separations - Discharge - Unfitness and Unsuitability].

7.  On 17 January 1970, the applicant's commander notified the applicant of his intention to recommend that the applicant be separated from the U.S. Army under the provisions of Army Regulation 635-212 for unsuitability based on him willfully disobeying a lawful command from his superior commissioned officer and being AWOL on three occasions totaling 19 days.  The commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation action, of his rights, and that the applicant had 72 hours to consult with counsel.

8.  On 20 January 1970, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-212 for unsuitability.

   a.  He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.  

   b.  He was also advised that he may be discharged under conditions other than honorable, that he may be deprived of many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under conditions other than honorable.

   c.   The applicant waived consideration of his case by a board of officers; waived personal appearance before a board of officers; elected not to submit statements in his own behalf; and waived representation by counsel.

9.  On 21 January 1970, the applicant's commander recommended that the applicant be separated from the service for unsuitability and that a DD Form 257A (General Discharge Certificate) be issued.

10.  On 25 January 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unsuitability and directed that a General Discharge Certificate be issued.  He also directed that the unexecuted portion of the sentence to confinement be suspended.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 28 January 1970 in accordance with Army Regulation 635-212 with a general discharge under honorable conditions.  At the time he had completed 9 months of net active service.

   a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

   b.  Item 26a (Non-Pay Periods Time Lost), coupled with Item 30 (Remarks), shows he had 77 days lost time (i.e., on 2 September 1969, from 6 November to 12 November 1969, 17 November to 27 November 1969, and 29 November 1969 to 26 January 1970).

12.  On 28 January 1970, the applicant acknowledged he understood that he must apply to the Army Discharge Review Board within 15 years after the effective date of his discharge if he desired a review of his discharge.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unsuitability based on inaptitude; character and behavior disorders; apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  This Army regulation provided that when separation for unsuitability was warranted, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Army Regulation 635-200, which superseded Army Regulation 635-212, 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.  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.

	b.  Chapter 3, 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 that his general discharge under honorable conditions should be upgraded to fully honorable based on a review of his records. 

2.  The applicant's separation under the provisions of Army Regulation 635-212 for unsuitability was proper and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the characterization of service directed was appropriate and equitable.


3.  The applicant's military records were carefully reviewed and considered.  The evidence of record shows he:

* served just over six (6) months of a 12-month tour of duty in Vietnam
* was not awarded any individual awards
* received NJP on three occasions
* was convicted at a special court-martial
* had a total of 77 days of lost time

4.  Even though the applicant has only one special court-martial, the court-martial was for willfully disobeying a lawful command from his superior commissioned officer to go on an operation in Vietnam.  That court-martial, plus his punishment on three occasions under Article 15, UCMJ, are "clear and demonstrable reasons" which justify a less than fully honorable discharge.  Therefore, it is concluded that the applicant's overall quality of service did not meet the standards of acceptable conduct and performance for Army personnel and he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20100013266



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ABCMR Record of Proceedings (cont)                                         AR20100013266



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