BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016788 


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 discharge to an honorable discharge.

2.  The applicant states he believes he was eligible for a general discharge 
6 months after he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 in the U.S. Army Reserve (USAR) for a period of
6 years on 19 March 1969.  He was ordered to active duty for training on
9 December 1969.  Upon completion of training he was awarded military occupational specialty 55A (Ammunition Apprentice).

3.  The applicant's DD Form 214 shows he was honorably released from active duty on 17 April 1970 and transferred to his USAR unit to complete his Reserve obligation.  At the time he had completed 4 months and 10 days of net active service.

4.  Headquarters, 445th Supply Company (Repair Parts), General Support, Trenton, NJ, Unit Orders Number 30, dated 13 February 1972, reduced the applicant from private first class (E-3) to private (E-2) based on inefficiency and unexcused absence.

5.  Headquarters, 445th Supply Company (Repair Parts), Trenton, NJ, letter, dated 15 September 1972, Subject:  Reporting Enlisted Reservists for Active Duty due to Unsatisfactory Participation in Reserve Training, shows the applicant's company commander requested the applicant be ordered to active duty for a period of 18 months for unsatisfactory participation of reserve training.  The reason for the commander's recommendation was the applicant failed to attend training assemblies on 5 and 6 February, 4 March, 21 May, and 9 and
10 September 1972.

6.  A Psychiatric Evaluation shows the applicant was seen by a psychiatrist at the Medical Arts Building, Trenton, NJ, on 26 September 1972:
   
   a.  The diagnosis was "Multiple drug dependency and Passive-aggressive Personality - severe."

   b.  The psychiatrist stated "[the applicant] came for a psychiatric evaluation with the hope of avoiding military service."  The applicant acknowledged missing 13 unit meetings over the last year and that he was only allowed to miss five.
   
   c.  The psychiatrist stated the applicant had a long history of maladaptation. The applicant stole a coin collection when he was in the fourth or fifth grade.  He then began a lengthy period of shoplifting.

   d.  The psychiatrist stated the applicant had an extensive drug abuse history.  The applicant began using LSD while in high school, he used amphetamines "once in a while," and smoked marijuana every day.

   e.  The psychiatrist stated the applicant was in need of rehabilitative efforts and recommended the applicant apply to the New Jersey State Rehabilitation Commission for assistance.
   
   f.  The psychiatrist concluded the applicant would not make a productive adaptation in a military setting.  He added, in his opinion, the applicant will find himself in a chain of disciplinary actions which would eventually force his discharge.  The psychiatrist recommended the applicant be considered unsuitable for military service.
   
7.  On 3 October 1972, an assistant adjutant general, First United States Army, Fort George G. Meade, MD, notified the applicant that board action under the provisions of Army Regulation 135-178 (Reserve Components - Separation of Enlisted Personnel), chapter 7 (Unfitness and Unsuitability), was contemplated to consider his discharge from the USAR for unsuitability due to character and behavior disorder.  The applicant was advised of his rights and of the separation procedures involved.  He was also advised that he could elect to waive board action and accept discharge under honorable conditions.

8.  On 25 October 1972, the applicant voluntarily acknowledged with his signature that he had been advised and counseled on the basis for the contemplated discharge action, and that he was afforded the opportunity of consulting with counsel:

   a.  He waived consideration of his case by a board of officers and accepted discharge under honorable conditions; waived personal appearance before a board of officers; and waived representation by counsel.

   b.  He indicated he was submitting a statement in his own behalf and provided a copy of the Psychiatric Evaluation.

9.  Headquarters, First United States Army, Fort George G. Meade, MD, Special Orders Number 333, dated 28 November 1972, show the separation authority approved the applicant's discharge under the provisions of Army Regulation
135-178, paragraph 7-5b(2), for unsuitability, effective 20 November 1972, and that a DD Form 257A (General Discharge Certificate) be issued.

10.  There is no evidence of conviction by court-martial or any other adverse information in the applicant's military service records, except the applicant's unexcused absences from training assemblies and resultant reduction in grade.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
12.  Army Regulation 135-178, in effect at the time, set forth policy and prescribed procedures for separating enlisted Soldiers from the USAR and Army National Guard of the United States:

   a.  Chapter 7 established policy and procedures for eliminating enlisted Soldiers who were found to be unfit or unsuitable for further military service.  Paragraph 7-5 (Applicability), subparagraph b(2), governed separation for unsuitability due to character and behavior disorders, disorders of intelligence, and transient personality disorders due to acute or special stress.  

   b.  A general or an honorable discharge was considered appropriate for an enlisted Soldier separated by reason of unsuitability.  

	c.  It 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.

13.  Following settlement of a civil suit, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was honorably discharged because he was discharged for unsuitability based on a character and behavior disorder.

2.  The applicant's separation under the provisions of Army Regulation 135-178 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, at the time, the characterization of service directed was appropriate and equitable.

3.  Subsequent to the applicant's discharge from the USAR, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  There is no evidence that the applicant had a record of court-martial or any other adverse actions during the period of service under review, except the applicant's unexcused absences from USAR training assemblies and resultant reduction in grade.  Therefore, as a matter of justice, the applicant's military service records should be corrected to show he was honorably discharged effective 20 November 1972.

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 a DD Form 256A (Honorable Discharge Certificate), dated 20 November 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant.




      _______ _  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)                                         AR20100016788



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ABCMR Record of Proceedings (cont)                                         AR20100016788



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