BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021303 


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, in effect, that his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  He states:

* He joined the military because of a friend
* He also joined because he loved his country
* He went into a mental state because he did not join the service to be stateside
* He went to the 82nd Airborne, Bragg in order to go to Vietnam  

3.  He provides no additional documents.

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’s record shows he enlisted in the Regular Army on 2 December 1970.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned to the following duty stations after completing basic and advanced individual training:
  
* 1 July to 14 December 1971 – Fort Bragg, NC
* 15 December 1971 to 11 January 1972 – Fort Riley, KS

4.  His record documents no acts of valor or service warranting special recognition.

5.  His record does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for, without authority, going from his guard post with intent to abandon the same.  

6.  On 4 December 1971, the applicant was convicted by a special court-martial of using disrespectful language towards a noncommissioned officer and willfully disobeying a lawful order from a noncommissioned officer.

7.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 that contains the authority and reason for the applicant’s active duty discharge.  This document was authenticated by the applicant with his signature in Item 31 (Signature of Person Being Transferred or Discharged).

8.  On 6 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant indicated that he would not be submitting a statement in his behalf.

9.  On the same date, the unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The commander stated that his decision was based on the applicant not having definite or realistic goals, his inability to fully relate his beliefs, his inability to establish effective inter-personal relationships, and the unit social worker classifying him as a borderline psychotic.  

10.  The separation authority approved the discharge for unsuitability and directed he receive a general under honorable conditions discharge.  

11.  On 11 January 1972, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him confirms he was separated with a general under honorable conditions discharge.  At the time of his discharge, he held the rank of private/E-1 and had completed a total of 11 months and 19 days of creditable active military service with 51 days lost time.  This document further shows that the authority for his separation was Army Regulation 635-212 and the reason for separation was unsuitability (character and behavior disorder).  Based on the authority and reason for his discharge, the applicant was assigned a Separation Program Number (SPN) of 264, which reflected a character and behavior disorder separation.  

12.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade to his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under this authority could receive either an honorable discharge or general under honorable conditions discharge.

14.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was published and became the governing regulation for all administrative separations of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  Department of the Army message, date/time group 302221Z March 1976, changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976.

15.  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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides, in pertinent part, when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by a general court-martial or convicted by more than one special court-martial during the current enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  It further shows that his separation processing was accomplished in accordance with the applicable regulation at the time and his discharge accurately reflected his overall record of service.  

2.  However, under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an honorable discharge unless they have been convicted by a general court-martial or have more than one special court-martial.  Given the applicant’s disciplinary record does not support a general under honorable conditions discharge, his discharge is too harsh under current standards. Therefore, it would be appropriate to upgrade his discharge to an honorable discharge in the interest of equity.

BOARD VOTE:

____x__  ____x____  ____x____  GRANT 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 voiding his general discharge and issuing the appropriate documentation showing that the applicant was separated with an honorable discharge on 11 January 1972.  




      ___________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)                                         AR20100021303



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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