IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110002312 


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 under honorable conditions to honorable.

2.  He states he:

* was discharged for minor disciplinary infractions
* owed money on a watch that he returned because it was poor in quality
* was an excellent serviceman as witnessed by his proficiency and conduct ratings as well as his discharge grade of specialist four (SP4)/E-4
* was initially recommended for an honorable discharge, but he was given a general discharge

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and documents from his service record.

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 enlisted in the Regular Army on 7 January 1969 for a period of 3 years.  He was promoted to SP4 on 27 February 1970.

3.  On 23 June 1970, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  He was advised of his rights.

4.  His service record contains a memorandum, dated 30 June 1970, which shows he had undergone a psychiatric examination; however, the AE Form 3087 (Report of Psychiatric Evaluation) is not available.

5.  He acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and didn't submit statements in his own behalf.

6.  On 23 July 1970, his unit commander recommended that the applicant be evaluated under the provisions of Army Regulation 635-212, paragraph 6b(1), to determine whether he should be separated prior to his expiration of term of service.  The unit commander cited information in support of the recommendation and described the applicant's performance and conduct as:

	a.  he had been a minor problem since he had arrived in the unit;

	b.  he was unable to function in a satisfactory manner and his inaptitude had caused him to do things that created additional work for other personnel;

	c.  his inaptitude caused him to be the brunt of many unkind jokes and he was always in financial difficulty because of his inability to resist a sales pitch;

	d.  he received adverse counseling on his financial short sightedness to include:

		(1)  his obligation to pay for merchandise received,

		(2)  his indebtedness for a watch which he purchased but wasn't satisfied with,

		(3)  his indiscriminate purchase of life insurance – he purchased three life insurance policies in one evening from three separate salesmen; and

	e.  he received conduct and efficiency ratings of:

		(1)  "excellent" and "excellent,"

		(2)  "excellent" and "excellent,"

		(3)  "good" and "good,"

		(4)  "excellent" and "excellent," and

		(5)  "poor" and "poor."

7.  The unit commander recommended the applicant be given an honorable discharge.  The unit commander also stated the applicant was pending a summary court-martial for the alleged theft of his roommate's wallet and had no other record of disciplinary action.

8.  The intermediate commanders recommended the applicant be separated with a general discharge.

9.  The separation authority waived rehabilitative transfer requirements and directed discharge under the provisions of Army Regulation 635-212, paragraph 6b(2), with issuance of a General Discharge Certificate.

10.  On 27 August 1970, he was discharged in the rank of SP4 under the provisions of Army Regulation 635-212 by reason of unsuitability – character and behavior disorders.  He completed 1 year, 7 months, and 21 days of active military service.

11.  His service record doesn't indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority.  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.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority 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.

14.  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 a 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 upgrades of discharges based on personality disorders.

15.  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 applicant's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  His service record shows he received conduct and efficiency ratings of "excellent," "good," and "poor" during his tenure on active duty.  His service record supports his contention that he held the rank of SP4 at the time of his discharge in August 1970.

3.  Although his psychiatric evaluation is not available, the applicant was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 27 August 1970 was accomplished in accordance with regulations then in effect.

4.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant should receive an honorable discharge consistent with these standards.

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 by issuing him a new DD Form 214 and an Honorable Discharge Certificate, dated 27 August 1970, in lieu of the DD Form 214 and General Discharge Certificate he now holds.



      __________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)                                         AR20110002312



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ABCMR Record of Proceedings (cont)                                         AR20110002312



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