BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110001087 


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 he did not receive an upgrade of his GD.

3.  The applicant 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 military record shows he was inducted into the Army of the United States on 7 April 1966.  He was trained in and awarded military occupational specialty 94A (Food Service Apprentice).

3.  The applicant’s record reveals a disciplinary history that includes his:

   a.  acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 13 August 1966, for being absent without leave from on or about 9 - 10 August 1966; and
   
   b.  conviction by a special court martial (SPCM) on 25 November 1966 for being AWOL from on or about 25 August - 29 September 1966.

4.  On 17 March 1967, the applicant underwent a psychiatric evaluation.  The attending psychiatrist indicated the applicant:

   a.  had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels;
   
	b.  was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings; and

	c.  was diagnosed with a "passive-aggressive personality."

5.  On an unknown date, 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 the applicant's:

* emotional unstable personality and severe behavior disorders
* numerous rehabilitative measures were unsuccessful, his conduct was completely unsatisfactory
* long history of maladjustment and contempt for authority
* lack of regard for authority and multiple offenses of disrespect
* lack effort to improve his attitude or behavior following the disciplinary measures that had been taken

6.  On 21 March 1967, the applicant acknowledged notification of the pending separation action.  He consulted legal counsel and was advised of the basis for the contemplated separation action 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.

7.  On 23 March 1967, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unsuitability, with the issuance of a General Discharge Certificate.  On 7 April 1967, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant at the time shows he completed
7 months and 29 days of total active service.  This document further shows in item 11c (Reason and Authority) Army Regulation 635-212, and separation program number (SPN) 264, which indicate he was separated due to a character and behavior disorder.  Item 13a (Character of Service) shows he was separated under honorable conditions with a General Discharge Certificate.

9.  Item 30 (Remarks) includes an entry that was continued from Item 11c which confirms the applicant was discharged from the military due to "Character and Behavior Disorders."

10.  There is no evidence of record to show the applicant made a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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 due to character and behavior disorders.  When separation for unsuitability was warranted, an honorable or GD 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 updated and 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 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 states 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 his GD should be upgraded to an HD.

2.  The available evidence shows the applicant was separated due to a character and behavior disorder.  It further shows his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.

3.  However, the Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify an 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 a 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.

4.  Therefore, based on current standards the applicant should be issued 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 issuing the applicant a new DD Form 214 and Honorable Discharge Certificate, dated 7 April 1967, in lieu of the DD Form 214 and General Discharge Certificate that is held by the applicant.



      _______ _  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)                                         AR20110001087



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001087



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1