BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013402 


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 a fully honorable discharge.

2.  The applicant states the Social Security Administration advised him to file for an upgrade.

3.  The applicant provides no supporting documentation.

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 was inducted into the Army of the United States on 26 January 1970.

3.  On 14 February 1970, while in basic training, he went absent without leave (AWOL).  He remained absent until 2 November 1970 until he was apprehended by the Federal Bureau of Investigation as a deserter.  The applicant was placed in military confinement for 2 days. 

4.  Upon release from confinement, he went AWOL again for 2 days.  He voluntarily returned and he was again placed in confinement for 2 days.

5.  A 2 December 1970 referral to Mental Health is attached to the separation packet; however, the actual evaluation is not in the available records.

6.  On 7 January 1971, a special court-martial found the applicant guilty of being AWOL from 14 February through 1 November 1970.  He was sentenced to a forfeiture of $50.00 pay for 5 months and confinement for 5 months.

7.  The court-martial convening authority approved the findings and sentence and directed that the confinement portion of the sentence be suspended for 5 months.

8.  On 8 January 1971, his unit commander initiated separation proceedings under Army Regulation 635-212 for unsuitability - personality or behavioral disorder.  

9.  On 11 January 1971, after consulting with military counsel, the applicant acknowledged the proposed separation action and waived all of his rights.

10.  On 25 January 1971, the unit commander continued the separation process with the submission of a DA Form 2496 (Disposition Form).  The unit commander noted the applicant had two periods of AWOL, two periods of confinement and a conviction by a special court-martial.  He stated that the applicant had undergone a psychiatric evaluation that afforded the applicant a diagnosis of a personality or behavioral disorder.  The referenced psychiatric evaluation is not of record.  This form shows an honorable discharge was recommended in block one but a general discharge was recommended in block 2.  

11.  The discharge authority approved the applicant's separation with a general discharge under Army Regulation 635-212 for unsuitability. 

12.  The applicant was discharged on 28 January 1971.  His DD Form 214 shows 4 months and 7 days of creditable service with 269 days of lost time due to being 

AWOL and in military confinement.  His separation program number (SPN) is shown as 264 (character and behavior disorder).

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 (previously called 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be upgraded to show his service was fully honorable.

2.  The applicant's DD Form 214 incorrectly shows 4 months and 7 days of creditable service.  The applicant was associated with the Army for 368 days of which 269 days were lost time due to him being AWOL or in confinement.  When 

the 269 days of lost time is subtracted from his total period of service, his creditable service equals 99 days.  

3.  The applicant did not complete basic training and he had almost three times more lost time than creditable service.  This extremely limited period of service was devoid of significant performance. 

4.  The discharge proceedings were conducted in accordance with laws and regulations applicable at the time of his discharge.  The character of the applicant's service was commensurate with his overall record of military service.  

5.  However, in 1976/1977, the Brotzman/Nelson Memoranda came into effect and discharges for personality or behavioral disorders were required to be reevaluated under the revised standards.  Unless a Soldier was convicted by a general court-martial, or had convictions by more than one special court-martial, or other clear and demonstrable reasons were shown an upgrade to a fully honorable discharge was mandated.  

6.  Since the applicant was discharged for a personality or behavioral disorder and he had only one special court-martial conviction, an upgrade to a fully honorable discharge is mandated.  

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 that the individual concerned was separated from the service with an Honorable Discharge Certificate on 28 January 1971;

	b.  issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 28 January 1971, in lieu of the general discharge 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)                                         AR20100013402



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ABCMR Record of Proceedings (cont)                                         AR20100013402



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