IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029524 


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 an upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states that he wants an upgrade of his GD.

3.  The applicant provides a copy of his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge).

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 military record shows he enlisted in the Regular Army on
16 July 1970.  He was trained in and awarded military occupational specialty 51N (Water Supply Specialist).
3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on five separate occasions between the period 11 September 1970 through 17 February 1971 for a myriad of disciplinary infractions that include:

* Wrongfully appearing in dirty fatigues, without a haircut, unshaved, and in an unclean condition
* Failure to obey a lawful order
* Missing movement
* Disobeying a lawful regulation by leaving his weapon unguarded and unattended in his wall locker
* three times failing to go to his appointed place of duty

4.  On 20 April 1971, the unit commander notified the applicant he was being considered for elimination from the Army under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability.  He indicated the basis for this action was due to the applicant's:

* lack of appropriate interest
* defective attitudes
* inability to expend his effort constructively

5.  An AE Form 3087 (Report of Psychiatric Evaluation) shows the applicant underwent a psychiatric evaluation on 28 May 1971.  The attending psychiatrist found the applicant:

* alert and oriented
* relates in a quiet soft voice and has difficulty expressing his feelings
* although there is no evidence, he appears depressed
* his intellect was judged on a low range
* had no evidence of psychosis, neurosis, or organic brain damage

6.  The psychiatrist further diagnosed the applicant with "inadequate personality with situational maladjustment."  He also indicated the applicant was somewhat confused regarding his separation action and had the ability to understand but may need more time to fully comprehend the paperwork and its consequences.  Finally, the psychiatrist cleared the applicant for separation.


7.  On 11 June 1971, the applicant acknowledged notification of the separation taken against him.  He consulted legal counsel and was advised of the basis for his contemplated separation for unsuitability and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.  

8.  On 29 June 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unsuitability, with issuance of a General Discharge Certificate.  On 20 July 1971, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant at the time shows he completed
1 year and 6 days of total active service.  This document further shows in item 11c (Reason and Authority) the applicant was assigned a separation program number (SPN) code of 264, which indicated a character and behavior disorder separation.  Item 13a (Character of Service) shows he received an under honorable conditions [general] discharge.  Item 13b (Type of Certificate Issued) shows he was issued a DD Form 257A [General Discharge Certificate].

10.  There is no evidence of record to show that the applicant made a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

12.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  A Department of the Army (DA) message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder.” 

13.  Army Regulation 635-200 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.  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 (SPCM) was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge

15.  Department of Defense (DoD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

16.  Army Regulation 635-200, currently in effect, 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 have been convicted of an offense by general court-martial or convicted by more than one special court-martial during the current enlistment.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of the applicant’s discharge stipulated that the 
SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to an HD.

2.  The evidence of record confirms the applicant was separated under the unsuitability (character and behavior disorder) provisions of the regulation in effect at the time.  It further shows that his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.

3.  The Nelson Memorandum 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.  Under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD unless they have been convicted by a general court-martial or more than one special court-martial.  Therefore, given the applicant’s disciplinary record does not rise to a level that supports a GD, his discharge is too harsh under current standards and should be upgraded to an HD in the interest of equity.

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 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
20 July 1971, in lieu of the General Discharge Certificate of the same date now held by the applicant;

	b.  issuing the applicant a new DD Form 214 that shows he received an honorable characterization of service.




      _______ _   __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)                                         AR20100029524





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ABCMR Record of Proceedings (cont)                                         AR20100029524



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