IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100014970 


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 his General Discharge (GD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states his GD is a result of a personality conflict with his first sergeant.

3.  The applicant provides no additional 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.  With 3 years, 9 months, and 28 days of creditable service in the U.S. Air Force, the applicant enlisted in the Regular Army for 3 years on 26 September 1960.  He completed Basic Combat Training (BCT) at Fort Dix, NJ and Advanced Individual Training (AIT) at Fort Benning, GA, followed by the Basic Airborne Course.  Following training, he was transferred to Fort Campbell, KY on 11 February 1961 and he was assigned to the 101st Aviation Company with duty as a wireman on 17 February 1961.

3.  The applicant demonstrated misconduct while assigned to the 101st Aviation Company.  A DD Form 789 (Unit Punishment Record) shows he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on three occasions:  

   a.  on 21 June 1961 for being absent from duty – found asleep in woods.
   
   b.  on 12 July 1961 for missing Reveille Formation.
   
   c.  on 1 September 1961 for missing Reveille Formation.

4.  A DA Form 19-24 (Statement) from the applicant's first sergeant states:

	a.  The applicant was late returning from pass on 7 June 1961.  Because it was the first serious offense committed by the applicant, the first sergeant merely counseled him.

	b.  On 10 June 1961, the applicant was given duty as battalion duty driver.  He reported to Battalion Headquarters with a torn uniform, brass not shined, boots not shined, and not clean-shaven.  The battalion command sergeant major sent him back to the first sergeant.  The first sergeant elected to let the applicant's platoon sergeant handle the matter.

	c.  On 21 June 1961, the applicant was asleep in the woods when he was supposed to be attending a critique of the company's ATT (Army Training Test).  The first sergeant requested NJP for the applicant.

	d.  The applicant was scheduled to go on leave on 12 July 1961.  On 11 July, he asked for a pass to have his car tuned up.  He did not return from pass on 11 July.  At 0605 hours, 12 July 1961, he called the unit charge of quarters and said he'd be at the unit in 15 minutes; he did not report to the first sergeant until 0800 hours.  The first sergeant requested NJP for missing Reveille Formation.


	e.  On 12 July 1961, the applicant departed on his leave.  On 22 July 1961, the Red Cross contacted the unit to request a leave extension for the applicant due to his mother's illness.  The applicant had no more leave and the extension was disapproved; he was told to return by 2400 hours, 24 July 1961.  On the 24th, he called to inform the unit his car broke down and he had no money for commercial transportation, so he was going to hitchhike.  The first sergeant approved a 1-day leave extension so the applicant wound not be absent without leave (AWOL).  When he returned on the 25th, the first sergeant told him to get into his uniform, but he stated he had no boots because he left his gear in Hopkinsville, KY because he was hitchhiking and the gear became too heavy to handle, he just left it.

	f.  On 29-30 July 1961, the applicant was arrested by civilian police in Dixon, TN for being drunk and disorderly.

	g.  On 1 September 1961, the applicant missed Reveille Formation and was restricted to the company area for 14 days.  On 2, 4, and 10 September 1961, he failed to sign-in as he was ordered to do.  On 3 September 1961, he broke restriction and was returned to the company area by the military police.

	h.  On 11 September 1961, the applicant missed Reveille Formation.

5.  The applicant was reassigned within the company in an effort to give him a new start at soldiering.  His new assignment to the Airfield Operations Platoon was cut short because of his inability to perform his duties.  He was then reassigned to the Motor Pool as a duty Soldier.

6.  The applicant was repeatedly counseled by his entire chain of command – his platoon sergeants, platoon leaders, the first sergeant, and the company commander – to no avail.  On 28 August 1961, he was referred to a psychiatrist for evaluation.  He was diagnosed as having emotional instability reaction, manifested by immaturity, impulsivity, and inadequacy.  The psychiatrist recommended discharge.

7.  On 6 September 1961, the applicant's Company Commander recommended that he be separated under the provisions of Army Regulation 635-209.  A 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with a GD on 26 September 1961 under the provisions of Army Regulation 635-209 for unsuitability with a Separation Program Number (SPN) of 264 (character and behavior disorders).  He had 1 year and 1 day of creditable service on his 3-year enlistment.

8.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  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 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.

11.  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.



12.  Army Regulation 635-200 (Personnel Separations) paragraph 3-7a, provides that an HD 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 requests his GD be upgraded to an HD.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

3.  The Brotzman Memorandum (January 1977) required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

4.  The Nelson Memorandum (February 1978) 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.

5.  The applicant's military personnel record contains three instances of NJP for minor acts of indiscipline.  However, his record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.



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 upgrading his GD of 26 September 1961 to an HD.




      _______ _   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)                                         AR20100014970



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ABCMR Record of Proceedings (cont)                                         AR20100014970



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