BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026883 


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 discharge under honorable conditions be upgraded to honorable and a more favorable reentry eligibility (RE) code.

2.  The applicant states at the time of his discharge he was barely 18 years of age and enjoying his life in the Army for nearly 8 months.  However, he went home on leave after his sister was raped and later extended his leave for an additional month without permission in order to continue to care for his sister.  He later requested a hardship discharge and received assistance from his commander.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 24 September 1971.

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 records show he enlisted in the Regular Army on 30 November 1970.  He was 17 years and 5 months of age at the time of his enlistment.

3.  On 12 July 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave from 7 June 1971 to 28 June 1971.

4.  On 1 September 1971, he underwent a psychiatric evaluation and was diagnosed as having a severe emotionally-unstable personality.  His condition was defined as a severe character and behavior disorder with no violent tendencies, but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective Soldier.

5.  On 2 September 1971, his commander notified him of his intent to eliminate him from service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unsuitability.  In an earlier recommendation the commander stated the applicant had a severe character and behavior disorder with no violent tendencies, but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective Soldier.

6.  On 8 September 1971, he acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  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 on his own behalf.

7.  On 15 September 1971, the separation authority approved his discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed that the applicant receive a General Discharge Certificate.

8.  He was discharged on 24 September 1971 and his DD Form 214 confirms he received an under honorable conditions discharge (general) and an RE code of RE-4.  He completed 8 months and 24 days of creditable active military service and he had 31 days of lost time.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.

	a.  An individual was subject to separation for unsuitability for apathy (character and behavior disorders, lack of appropriate interest, defective attitudes, and inability to expend efforts constructively).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

	b.  To preclude reentry into the Army unless authorized by appropriate authority, the DD Form 214 of all individuals, with the exception of those who completed 18 or more years of active Federal service, discharged under this regulation will be coded "RE-3."

11.  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 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.

12.  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 601-210 (Regular Army and Army Reserve Reenlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for processing applicants for enlistment in the Regular Army and U.S. Army Reserve.  Table 4-11 included a list of RE codes.

	a.  RE-1.  Soldiers who completed their term of active service and were considered fully qualified to reenter the U.S. Army.

	b.  RE-3.  Soldiers who were not considered fully qualified for reentry or continued Army service at the time of separation, but their disqualification was waivable.  These Soldiers were ineligible to reenlist without an approved waiver.

	c.  RE-3B.  Soldiers who were not considered fully qualified for reentry or continuous service at the time of separation because of lost time during their last period of service.  These Soldiers were ineligible to reenlist without an approved waiver.

	d.  RE-4.  Soldiers separated from last period of service with a nonwaivable disqualification.  These Soldiers were ineligible to reenlist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge under honorable conditions be upgraded to honorable and a more favorable reenlistment code.

2.  The record confirms he was separated by reason of unsuitability (character and behavior disorder) under the provisions of the regulation in effect at the time and that his separation processing was accomplished in accordance with the applicable regulation.  

3.  However, historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  As a result, the applicant's military service records should be corrected to show he was honorably discharged effective 24 September 1971 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

4.  The applicant received an RE code of 4 based upon his discharge for unsuitability, character and behavior disorder; however, the regulatory guidance states the reenlistment code "RE-3" will be assigned to Soldiers discharged under the provision of Army Regulation 635-212.  Additionally, because he had lost time during his period of service his DD Form 214 should be corrected to show "RE-3B."



BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 to show he:

* was honorably discharged on 24 September 1971
* issued an Honorable Discharge Certificate
* received the RE code "RE-3B"

2.  Further, he should be issued a new DD Form 214 and Honorable Discharge Certificate.



      __________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)                                         AR20100026883



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ABCMR Record of Proceedings (cont)                                         AR20100026883



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