BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026592 


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 reconsideration of his earlier request for an upgrade of his general discharge.  He also now requests a personal hearing.

2.  The applicant states in a self-authored letter, dated:

	a.  12 March 2010, that his court-martial was in error because it convicted him of wrongfully appropriating a Government pistol when in fact all the weapons were accounted for.  The arms room was closed after a scheduled event/function had ended and he was tasked with maintaining accountability of the weapons until the following morning.  The record shows that he was entering the base when he was stopped by the Military Police and the weapons were found in his trunk.

	b.  14 October 2010, that the DA Form 2173 (Statement of Medical Examination and Duty Status) predates the events that are documented in the Line of Duty (LOD) statement.  The arraignment for theft of weapons and AWOL (absence without leave) predates by 35 days the theft and AWOL as recorded in the LOD report.  If this document identifies events that occurred prior to the alleged offenses, then this document is in error in the Board's original Record of Proceedings.  It is clear that the Board's analysis was flawed and there should be a reconsideration.

	c.  26 November 2010, that he was wrongfully and fraudulently discharged and now that the Board has opened a new investigation and assigned a new number to his case, he now considers the Board a party to the fraud.

3.  The applicant did not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100008341, on 2 September 2010.

2.  The applicant did not submit any new evidence, but he submitted a new argument which was not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 3 February 1956 for a period of 3 years.  He held military occupational specialty 776 (Transportation Parts Specialist).  He was honorably released from active duty on 6 February 1959 and he was transferred to the U.S. Army Reserve (USAR).

4.  On 10 February 1959, he enlisted in the Regular Army for a period of
6 years.  He was assigned to Company A, Troop Command, U.S. Army Signal School, Fort Monmouth, NJ.

5.  On 1 April 1959, he departed his unit in an AWOL status but he returned on 2 April 1959.

6.  On 26 August 1959, he again departed his unit in an AWOL status but he returned on 28 August 1959.

7.  His records contain a DA Form 2173, dated 3 September 1959, that shows he sustained a laceration to his left wrist on 29 August 1959.  He was examined and/or treated at Patterson Army Hospital, Fort Monmouth, and he was placed in the Post Stockade (pre-trial confinement).  

8.  On 3 September 1959, he underwent a mental status evaluation at Patterson Army Hospital due to his attempted suicide.  A Mental Hygiene Consultation Service (MHCS) Certificate shows he was determined not to be insane and he possessed sufficient mental capacity to know the difference between right and 

wrong.  He was also considered to be mentally responsible for his actions.  He had many personal problems which were difficult for him to cope with and he felt overwhelmed by them.  He acted impulsively without good judgment and he later sincerely regretted his behavior.  The examining physician (Chief, MHCS) stated he did not believe the applicant seriously wanted to kill himself, but that he was pleading for help.  The examining physician believed counseling would help the applicant better control his impulsive behavior.  The applicant’s background and military record suggested he had satisfactory control in the past.

9.  On 9 September 1959, he pled guilty at and he was convicted by a special court-martial of one specification of being AWOL from 26 to 28 August 1959 and one specification of wrongfully appropriating a Government pistol.  He was  sentenced to a reduction to the lowest enlisted grade, confinement at hard labor for 4 months, and a forfeiture of $40.00 pay per month for 4 months.  The convening authority approved the sentence on 10 September 1959.

10.  On 29 October 1959, the Assistant Chief, Psychiatry and Neurology Consultant, reviewed the applicant’s case and found him to be mentally sound at the time of his self-inflicted injury on 29 August 1959.

11.  On 13 November 1959, a determination was made regarding his 29 August 1959 injury.  It was determined not to be in the line of duty.

12.  On 23 November 1959, he underwent another mental status evaluation at Patterson Army Hospital.  His MHCS Certificate shows he was diagnosed with an emotional unstable reaction, severe, manifested by poor impulse control, impulsive behavior, and poor judgment which resulted in behavior which was harmful to himself and a disciplinary problem.  The predisposition was his previous history of difficulty in getting along with other people and preferring to be alone.  LOD:  No, existed prior to service (EPTS).  The examining physician recommended that, if the applicant continued to create further problems for himself and others, he should be separated from the military as soon as possible under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Inaptitude or Unsuitability).

13.  In March 1960, he was transferred to Fort Benning, GA.  He was initially assigned to Headquarters and Headquarters Detachment (HHD),
3rd Transportation Battalion, but he was later transferred to HHD, Lawson Army Aviation Command.

14.  On 21 July 1960, the applicant's immediate commander notified the applicant of his intent to process him for elimination under the provisions of Army 

Regulation 635-209.  On the same date, the applicant acknowledged the notification and he elected not to have his case heard by a board of officers.  He also elected not to submit a statement in his own behalf.

15.  On 21 July 1960, the applicant's immediate commander submitted a unit commander's evaluation wherein he stated that the applicant had a definite "don’t care" attitude towards the military.  The applicant tried to do just enough to get by.  He seemed to want the security the Army offered, such as quarters, rations, and pay, but he used as little effort as possible to earn those privileges.  The applicant was transferred to his current unit after having problems with his previous unit.  The applicant's commander also stated the applicant rebelled against the rules and regulations and his attitude was that regulations were made just to harass him personally.

16.  On 22 July 1960, the applicant's commander recommended the applicant's elimination from the service under the provisions of Army Regulation 635-209, for character and behavior disorders.  The commander stated the applicant had been counseled by the unit commander on several occasions.  No reassignments were made within the unit as the applicant’s problem was a personal family problem rather than a military problem.

17.  On 4 August 1960, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  On 10 August 1960, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his character of service as under honorable conditions (general).  He completed 1 year, 2 months, and 3 days total active service during this period and he had 120 days of time lost.  

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

19.  Army Regulation 635-209, then in effect, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations) currently provides the policies and procedures 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.

21.  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.

22.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states the Director, ABCMR will manage the ABCMR day-to-day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded and he also now requests a personal hearing.

2.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.
3.  The evidence shows the applicant was reported in an AWOL status from
26 to 28 August 1959.  His injury occurred on 29 August 1959.  The DA Form 2173 was submitted and completed on 3 September 1959.  He was convicted by a court-martial on 9 September 1959.  The fact that his injury was determined to be not in the line of duty at a later date has no bearing on his conviction by the court-martial.  His conviction was related to his wrongful appropriation of a weapon on 25 August 1959 and being AWOL from 26 to 28 August 1959. 

4.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his multiple AWOLs and conviction by a court-martial.  Accordingly, his immediate commander initiated separation action against him.  He was discharged on 10 August 1960 with a general discharge.

5.  The ABCMR did not open a new investigation as he contends.  The ABCMR is not an investigative agency.  In light of his new argument, the Board simply reconsidered the original decisions and his records.

6.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

7.  Nevertheless, the Brotzman Memorandum mandated that the presence of a personality disorder (formerly known as character and behavior 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.  The applicant in this case was convicted by only one special court-martial.  Therefore, his discharge should be upgraded to fully honorable.

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 amendment of the ABCMR’s decision in Docket Number AR20100008341, dated 2 September 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the individual concerned was separated from the service with an honorable discharge on 10 August 1960;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 10 August 1960, in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him a new DD Form 214 reflecting the above corrections.



      __________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)                                         AR20100026592



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ABCMR Record of Proceedings (cont)                                         AR20100026592



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