BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110003131 


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 to an honorable discharge.

2.  The applicant states he has worked at the railroad for 38 years promoting himself to conductor and his position in the community is one of mutual respect.  At the time of his separation from the service he was 17 years of age and immature in his decision making.  He states he would certainly handle the situation differently today.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 24 (Service Record)
* 7th Infantry Division certificate of completion of the Counterguerrilla Warfare School, dated 22 May 1964
* his Expert Infantryman Badge certificate of completion
* his certification card that shows he successfully rappelled from a CH-21 helicopter

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 was born on 24 December 1945.  On 17 January 1963, he enlisted in the Regular Army for a period of 3 years.  He was 17 years and
25 days of age at the time of his enlistment.  He completed basic combat training at Fort Jackson, SC and advanced individual training at Fort Benning, GA.  He was awarded military occupational specialty (MOS) 111.00 (light weapons infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E3.

3.  On 10 July 1963, he was reassigned to Korea.  He was assigned duties in MOS 711.00 as a postal clerk.

4.  On 6 February 1964, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for dereliction of duties by failing to lock the safe in the branch Army Post Office.

5.  On 2 July 1964, he received NJP under Article 15, UCMJ for being disrespectful in language towards a noncommissioned officer (NCO) and for disobeying a lawful order from another NCO.

6.  On 2 September 1964, he was reassigned to Fort Carson, CO.

7.  In a report of neuropsychiatric evaluation, dated 8 October 1964, he was diagnosed with emotional instability.  It was also determined that his condition did not warrant separation from the service under the provisions of current medical discharge regulations.  He was found to have been mentally responsible, both to distinguish right from wrong, and to adhere to the right.  It was recommended the applicant be given no further rehabilitation because it was felt he would be useless to the service.  It was further recommended the applicant be separated under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).

8.  On 10 October 1964, his commander initiated elimination proceedings in accordance with Army Regulation 635-209 for unsuitability.  Elimination was recommended because of a demonstrable life-long pattern of defective adjustment as described in the neuropsychiatric report.  Additionally, the rehabilitative measures taken failed to remedy his situation.

9.  On 13 October 1964, after being counseled by his commander, he executed a waiver statement.  He was afforded the opportunity to request counsel; however, he did not desire counsel.  He also waived his right to have his case heard by a board of officers.  He was further advised that he could submit a statement in his own behalf; however, he also declined to do so.

10.  On 17 October 1964, a court-martial charge was preferred against the applicant for being disrespectful in deportment towards an NCO by refusing to obey a lawful order.  On 19 October 1964, contrary to his plea, he was found guilty by a summary court-martial and sentenced to confinement at hard labor for 1 month.  On 20 October 1964, his sentence was approved and ordered executed.

11.  On 20 October 1964, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability with a General Discharge Certificate.

12.  Summary Court-Martial Order Number 20, issued by Headquarters,
5th Infantry Division, Fort Carson, dated 4 November 1964, remitted the unexecuted portion of his sentence to confinement at hard labor for 1 month, effective 5 November 1964.

13.  On 9 November 1964, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209 for unsuitability with a Separation Program Number (SPN) of 264 (Unsuitability - character and behavior disorders).  He had 1 year, 9 months, and 7 days of total active service.  He had 17 days of time lost due to confinement.

14.  On 20 October 1983, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 12 March 1984, the ADRB denied his upgrade request.  The board determined the applicant failed to submit sufficient relative evidence to demonstrate the existence of probable material error or injustice to warrant an honorable discharge.

15.  Army Regulation 635-209, in effect at the time, set forth the basic policy and guidance for the prompt elimination of enlisted personnel.  Paragraph 3a provided for the separation of individuals determined to be unsuitable for further service by reason of a character and behavior disorder, lack of physical stamina, apathy, defective attitude, or an inability to expend effort constructively.  Under this regulation and paragraph, a general discharge was considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures 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.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, 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.

18.  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 contends his general discharge should be upgraded to an honorable discharge.

2.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders (previously known as character and behavior disorders).  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

4.  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.  

5.  There are no "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate at this time to upgrade the applicant's discharge to honorable.

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.  voiding the general discharge now held by the applicant;

	b.  showing the applicant was discharged from the service with an honorable discharge on 9 November 1964; and

	c.  issuing the applicant an Honorable Discharge Certificate, dated
9 November 1964, in lieu of the General Discharge Certificate of the same date 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)                                         AR20110003131



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003131



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1