IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017618 


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 he submitted a request for an upgrade in 1962; however, he did not receive a response.  He would like a written response concerning this request.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 April 1960, 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 in the Regular Army for 3 years on 13 January 1958.  He successfully completed training and was awarded military occupational specialty (MOS) 053 (Radio Teletype Operator).  He was advanced to private first class/E-3 on 25 March 1959.  Due to misconduct, he was reduced to private/E-2 on 27 April 1959.

3.  He received several nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice:

   a.  on 25 April 1959, he was charged with the offense of having beer in the billets and disobeying an order.  His punishment was reduction to private/E-2.

   b.  on 4 September 1959, he was charged with missing reveille formation.  His punishment was 7 days of extra duty.

   c.  on 6 September 1959, he was charged with fighting in the billets.  His punishment was 14 days of extra duty.

   d.  on 11 January 1960, he was charged with being absent without leave (AWOL) (apprehended without a pass).  His punishment was 14 days of extra duty.  He did not appeal any of these punishments.

4.  He received a psychiatric examination on 8 February 1960.  His diagnosis was "emotional instability reaction, chronic, moderate."  The findings and conclusions of this examination states that it was evident that his condition was of a character and behavior disorder which was not amendable to hospitalization, treatment, or transfer to another unit.

5.  It was determined that there was no psychiatric reason he could not be separated from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness); however, the psychiatrist stated he felt that his behavior was secondary to the diagnosis and that separation under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability) would be more appropriate.

6.  On 19 February 1960, his commanding officer recommended that he be discharged from the military service under the provisions of Army Regulation 635-208.

7.  He was counseled and advised of the basis for his elimination proceedings under the provisions of Army Regulation 635-208.  He was afforded the opportunity to request counsel; however, declined to do so and he waived the right to have his case heard by a board of officers.  He was advised that he could submit a statement in his own behalf; however, he declined to do so.

8.  On 26 February 1960, his 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 13 April 1960 under the provisions of Army Regulation 635-209 for unsuitability with a Separation Program Number (SPN) of 264 (character and behavior disorders).  He had 2 years 2 months and 26 days of creditable service on his 3-year enlistment.  He had 5 days of lost time due to being absent without leave.

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

10.  Army Regulation 635-209, in effect at the time, set forth the basic policy and guidance for the prompt elimination of enlisted personnel.  Paragraph 3a provided for the separation of individuals determined to be unsuitable for further service by reason of a character and behavior disorder, lack of physical stamina, apathy, defective attitude, or an inability to expend effort constructively.  Under this regulation and paragraph, a general discharge was considered appropriate.

11.  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.

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.  Army Regulation 635-200, 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.

5.  The applicant's military personnel record contains four 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 13 April 1960 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)                                         AR20100017618



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ABCMR Record of Proceedings (cont)                                         AR20100017618



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