IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100020861 


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 be upgraded to honorable.

2.  The applicant states:

* his discharge should be changed because of his service record at the time
* he was told it could be changed at a later date
* he served honorably until he made the mistake of going absent without leave (AWOL) 

3.  The applicant provides no documentary evidence 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 Regular Army on 9 September 1965, served as a field artillery basic crewman, and he was honorably discharged on 11 July 1967 for immediate reenlistment.  He reenlisted on 12 July 1967 for a period of 
4 years.

3.  On 14 February 1968, he was convicted by a summary court-martial of being AWOL from 1 January 1968 to 4 February 1968.  He was sentenced to confinement at hard labor for 30 days, forfeiture of $90.00, and to be reduced to E-1.  

4.  On 23 April 1968, he was convicted by a special court-martial of being AWOL from 19 March 1968 to 5 April 1968.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $90.00 pay per month for 3 months, and to be reduced to E-1.  

5.  He underwent a psychiatric examination and was diagnosed with a passive-aggressive and somewhat inadequate personality.  The psychiatrist found him to be competent and responsible.  He recommended, at the decision of the applicant's command, he might be considered for an administrative discharge by reason of his character disorder.

6.  On 17 May 1968, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The commander based his recommendation for separation on the applicant's character disorder manifested by a repetition of AWOL.

7.  He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

8.  On 26 June 1968, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    






9.  He was discharged on 5 July 1968 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He had served a total of 2 years, 5 months, and 6 days of creditable active service with 141 days of lost time.     

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

11.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and 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 and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 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.

13.  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.




14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 was diagnosed with a character and behavior disorder by a psychiatrist, and he was discharged for unsuitability due to a character and behavior disorder with a general under honorable conditions characterization of service.  His administrative separation on 5 July 1968 was accomplished in accordance with regulations then in effect.  

2.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge for unsuitability, character and behavior disorder (now known as personality disorder) which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards. 

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 5 July 1968. 

2.  That the Department issue to him an Honorable Discharge Certificate, dated 
5 July 1968, in lieu of the under honorable conditions (general discharge) of the same date now held by him.




      _______ _   _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)                                         AR20100020861





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ABCMR Record of Proceedings (cont)                                         AR20100020861



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