IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003001 


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 general discharge be upgraded to honorable.  He also requests item 1 (Last Name, First Name, Middle Name) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed.

2.  The applicant states:

* He has been through so much in his life
* He is getting help medically and mentally from all sorts of people but he wants to show his family that he is a good person
* In May 1980 he changed his last name to Rixxx and dropped his middle name 

3.  The applicant provides:

* Criminal record search
* Name change notice of hearing
* Seven character reference letters
* Numerous letters of appreciation
* Diploma
* Certificate of Accomplishment




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.  His enlistment contract shows his full as name Mxxx Dxxx Rixxx.  He enlisted in the Regular Army on 1 November 1968 for a period of 3 years.  He was awarded military occupational specialty 94A (Food Service Apprentice).  

3.  On 12 February 1969, nonjudicial punishment was imposed against him for being absent without leave from 2 to 5 February 1969.

4.  On 2 June 1969, he underwent a psychiatric examination and was diagnosed with a passive aggressive personality.  The psychiatrist found him to be mentally responsible and indicated his behavior pattern was that of a character and behavior disorder, severe.  It was strongly recommended that he be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  

5.  On 9 June 1969, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability.  The commander based his recommendation for separation on the following:

* Inadaptability
* Ineptness
* Poor judgment
* Social incompatibility
* A behavior pattern which was that of a severe character and behavior disorder





6.  On 9 June 1969, he consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

7.  On 12 June 1969, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

8.  On 19 June 1969, he was issued a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He had served 7 months and 16 days of creditable active service with 3 days of lost time.     

9.  Item 1 of his DD Form 214 shows the:

* First name Mxxx
* Middle name Dxxx
* Last name Rixxx     

10.  All of his service personnel records show his name as Mxxx Dxxx Rixxx.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  He provided a notice of hearing, dated 7 May 1980, which indicates he petitioned the court to change his name to Mxxx Rexxx instead of Mxxx Dxxx Rixxx. 

13.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.



14.  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 was 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.

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.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed with a character and behavior disorder by a psychiatrist and he was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on
19 June 1969 was accomplished in accordance with regulations then in effect.  

2.  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 in this case should receive an honorable discharge consistent with these standards. 

3.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.  

4.  His enlistment record and service personnel records show the full of name Mxxx Dxxx Rixxx.  It appears he appropriately served in and was separated from active duty in the full name of Mxxx Dxxx Rixxx.  He changed his name in 1980, 11 years after his discharge.  While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's records, in particular, the applicant’s DD Form 214.  

5.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his correct legal name change will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the difference in the names in his OMPF and satisfy his desire to have his current legal name documented in his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 
19 June 1969, in lieu of the DD Form 214 and General Discharge Certificate he now holds.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending item 1 of his
DD Form 214.



      ___________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)                                         AR20110003001



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ABCMR Record of Proceedings (cont)                                         AR20110003001



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