IN THE CASE OF:	   

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110010590 


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, in effect, an upgrade of his discharge to honorable and that his lost time be expunged from his record. 

2.  He states he understands he should have been disciplined for his conduct, but he does not believe he deserved the harsh sentence that he received, which was 6 months at hard labor for his first serious offense.  He would like to have his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) modified to show he was honorably discharged and removal of the 
150 days of lost time that is shown on this form.

3.  He provides a self-authored statement, his résumé, two commendations, a technical illustration, and a performance assessment.
	
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 20 March 1968.

3.  His record shows that, while attending Basic Combat Training (BCT) at Fort Ord, CA, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating restriction on 10 April 1968.  

4.  On 3 May 1968, Headquarters, Third BCT Brigade, U.S. Army Training Center Infantry, Fort Ord, CA, issued Special Court-Martial Order Number 63.  The order shows he pled guilty to failure to go at the time prescribed to his appointed place of duty on 13 April 1968 and willfully disobeying a lawful command from a superior officer.  He was found guilty and sentenced to be confined at hard labor for 6 months and to forfeit $63 pay for 6 months.  The sentence was approved and ordered to be duly executed.

5.  On or about 24 June 1968, he was examined by a psychiatrist at the Mental Hygiene Consultation Division, U.S. Army Hospital, Fort Ord, CA.  

	a.  The "pertinent history" section of the report of psychiatric evaluation shows he was involved in an auto accident at the age of 10 in which he fractured his skull and was subsequently in a coma 5 days.  He reported since that time he had been constantly plagued by headaches, an occasional sense of pressure in his head, blackouts, dizziness and feelings of faintness.  Since entering the service, he had been on sick call numerous times and had received x-rays and neurological examinations, all of which had been negative. 

	b.  He was diagnosed with "emotional unstable personality, chronic and very severe, manifested by periods of depression, and an extremely serious suicide attempt while in the stockade."  The psychiatrist found the condition to have existed prior to service and noted he had no disqualifying mental disability warranting separation through medical channels.  The psychiatrist also found him "so far free from mental defect, disease or derangement as to be able to distinguish right from wrong and to adhere to the right, and to understand and to cooperate in board proceedings."  The psychiatrist further noted the applicant was in a critical condition as a result of hanging himself in his cell and that there was "every [reason] to believe this was a serious suicide attempt and not merely a gesture."  

	c.  The examining psychiatrist stated he believed the applicant had an "extremely severe character and behavior disorder" and he recommended expeditious separation from the service under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability).

6.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) of his DA Form 20 (Enlisted Qualification Record) shows he was in confinement from 3 May to 2 October 1968, a total of 152 days.  

7.  On 4 October 1968, the applicant's commander recommended that he be discharged under the provisions of Army Regulation 635-212, paragraph 6b(2), based on character and behavior disorders with the issuance of a general discharge.  In his recommendation, he stated he was recommending the applicant's discharge "because of habits and traits of character manifested by a repeated number of times on sick call and complaining of headaches and apparent [suicide] attempts."  

8.  On 15 October 1968, the applicant acknowledged he had been notified he was being considered for elimination from the service due to unsuitability.  He was advised of his right to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel, or he could waive these rights.

9.  On 17 October 1968, he acknowledged he had been advised by counsel of the basis for the contemplated separation action due to unsuitability based on a character and behavior disorder under the provisions of Army Regulation
635-212.  He waived consideration of his case by a board of officers and a personal appearance before such a board.  He declined to submit statements in his own behalf and waived representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

10.  On 18 October 1968, the separation authority approved his separation action with the issuance of a General Discharge Certificate under the provisions of Army Regulation 635-212, paragraph 6b(2).  

11.  On 23 October 1968, the Adjutant General, Headquarters, USATC, Infantry and Fort Ord, CA, directed that he be separated as approved by the separation authority.

12.  On 30 October 1968, he was discharged accordingly.  His DD Form 214 shows his service was characterized as under honorable conditions and item 30 (Remarks) shows he had 152 days of lost time from 3 May through 2 October 1968.
13.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  He provides a self-authored statement in which he discusses the condition he was in during his military service and his life after he was discharged.  He states, in effect, he would like to receive benefits from the Department of Veterans Affairs.  He also states, in pertinent part that:

* he has taken responsibility for his past emotional instability
* the lost time shown on his DD Form 214 does not reflect his character now
* he was unstable and under the influence of his addictions when he served
* he has been "sober and sane for over ten (10) years"
* during BCT he was involved with amphetamines and barbiturates 
* he is not proud of his behavior in the military
* when he was incarcerated at Fort Ord, CA, he was allowed 7 days of leave for his older brother's funeral and returned rather than going absent without leave

15.  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 discharge or an honorable discharge was considered appropriate.

16.  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 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.

17.  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.

18.  Title 10, U.S. Code, Section 972, states an enlisted member of an armed force who deserts, is absent from his organization, station, or duty for more than one day without proper authority, or is confined by military or civilian authorities incurs lost time.  

19.  Army Regulation 635-5 (Separation Documents) 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.  The version in effect at the time stated, in pertinent part, that the total number of days lost with inclusive dates would be entered in item 30.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show, nor has the applicant provided evidence showing, any basis for removing lost time from his record.  He had 152 days of lost time due to being in confinement and this information is properly recorded on his DD Form 214.  His assertion that his special court-martial sentence was too harsh was noted.  However, his opinion on the severity of his sentence does not change the fact that he had lost time due to being in confinement and the lost time is required to be entered on the DD Form 214. 

2.  He 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 30 October 1968 was accomplished in accordance with regulations then in effect.  

3.  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.

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 30 October 1968, 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 lost time.  



      _______ _   _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)                                         AR20110010590



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ABCMR Record of Proceedings (cont)                                         AR20110010590



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