IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011	

		DOCKET NUMBER:  AR20100022705 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, he was discharged for unsuitability by reason of a character and behavior disorder and he would like his discharge reviewed and upgraded.  He further states that at times he is unable to hold in his anger and he gets depressed very easily.  He has problems with relationships, keeping jobs for any length of time, and has a hard time sleeping for more than 3 hours at a time.  He would like his discharge upgraded so he can qualify for help with the Department of Veterans Affairs (VA).

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter, subject:  Recommendation for Safety Award, dated 19 March 1970
* a letter, subject:  Report of Psychiatric Evaluation (applicant's name and social security number), dated 8 May 1970
* a Letter of Appreciation, dated 14 May 1970


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 was inducted into the Army of the United States on 24 April 1969 and he held military occupational specialty 64A (Light Vehicle Driver).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 8 August 1969 for being absent without leave (AWOL) from his assigned unit from 4 to 6 August 1969.

4.  He served in Vietnam from on or about 16 October 1969 to 31 May 1970 while assigned to the 572nd Transportation Company.

5.  While in Vietnam, he received NJP under the provisions of Article 15, UCMJ for the following offenses:

* on 1 March 1970, for being in an off-limits area on 28 February 1980
* on 6 April 1970, for being in an off-limits area on 31 March 1070, being absent from his unit on 31 March 1970, and for violating a lawful general regulation on 30 March 1970

6.  On 8 May 1970, the applicant underwent a psychiatric evaluation.  The psychiatrist diagnosed him with an "Immature personality - passive-aggressive, chronic- moderate, manifested by defiance of authority."  He went on to state that the applicant did not have a psychiatric disease or defect that warranted disposition through medical channels.


7.  On an unknown date in May 1970, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Unfitness and Unsuitability) for unsuitability.

8.  On 14 May 1970, he consulted with legal counsel, and was advised of the basis for the contemplated separation for unsuitability.  He waived consideration 
of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

9.  On 25 May 1970, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 by reason of unsuitability.  The immediate commander stated discharge was recommended because of the applicant's inability to cope or adjust to military life, manifested by his intake of alcohol.  He further stated that the applicant had been counseled by his chain of command numerous times and showed no desire to change and recommended the issuance of a General Discharge Certificate.  

10.  On 28 May 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  

11.  On 31 May 1970, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year and 5 days of total active service with 32 days of time lost.  Item 11c (Reason and Authority) of this form shows the entry "Army Regulation 635-212, SPN [Separation Program Number] 264G, Unsuitability-Character and Behavior Disorder."

12.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which superseded Army Regulation 635-212, 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.

14.  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 evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his receiving NJP on three occasions for being absent from his unit without authority, being in an off-limits area on two occasions, and for violating a lawful regulation.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors.  The type of discharge directed and the reason for separation were both proper and equitable at the time.  However, it now appears his overall service record and his diagnosed personality disorder warrant upgrading of his discharge to fully honorable as directed by the above-referenced Army memoranda.

3.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

____X____  ____X____  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ____X____  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 an Honorable Discharge Certificate, dated 31 May 1970, in lieu of the General Discharge Certificate of the same date now held by him and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      __________XXX_____________
               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)                                         AR20100022705



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ABCMR Record of Proceedings (cont)                                         AR20100022705



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