IN THE CASE OF:	

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110011814 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states that at the time of his discharge, 47 years ago, he was a young man who made a big mistake.  He accepts full responsibility for his actions and does not blame the Army.  Now that he is 67 years of age, he desires a discharge upgrade in order to boost his self-respect and to demonstrate to his children how proud he was to be a part of the U.S. Army.

3.  The applicant provides a self-authored statement, his DA Form 24 (Service Record), and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 record shows he was born on 17 July 1944 and he enlisted in the Regular Army (RA) on 17 July 1961 at the age of 17.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 174 (Hawk Air Defense Missile Repairman).  The highest rank/pay grade he attained while serving on active duty was the rank of private (PV2)/pay grade E-2.

3.  His record contains two DA Forms 2627 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) which show he accepted nonjudicial punishment (NJP) for the following offenses on the dates shown:

* 18 February 1963, for wrongfully absenting himself from his billets, in violation of Article 86, UCMJ
* 2 April 1963, for wrongfully disobeying a lawful order, in violation of Article 86, UCMJ

4.  His record contains a DA Form 26 (Record of Court-Martial Conviction) showing he was tried and convicted by a summary court-martial for violation of Article 86 of the UCMJ for absenting himself from his unit for a day.

5.  The DA Form 26 also shows he was tried and convicted by a special court-martial for violation of Articles 109 and 134 of the UCMJ for being drunk and disorderly in quarters.

6.  On 3 June 1963, the applicant's company commander recommended he be barred from further service in the RA, stating his repeated acts of minor misconduct rendered him substandard.

7.  The applicant's record contains an Army Europe (AE) Form 3087 (Report of Psychiatric Evaluation), dated 1 July 1963.  This form shows the applicant underwent a psychiatric evaluation on 27 June 1963 rendered by a military psychiatrist as part of the pre-separation process.  The examining psychiatrist noted the applicant's unit was considering such separation based upon the fact he was currently confined following court-martial for drunk and disorderly conduct which he denied remembering.  He also noted the applicant had 2 courts-martial and 3 Article 15s for drinking.  The applicant attested he had only been drunk 5 times in his life and each time he ended up in trouble.  The psychiatrist noted he had involved himself in religious work and had some bizarre ideas involving that.  The applicant smiled lightly and inappropriately as he spoke of his misdemeanors.  He claimed God spoke directly to him and he felt he would someday replace the Reverend Billy Graham.  He did not want a discharge; wanted only to work with his religious group; and tended to deny responsibility for his drinking.

8.  The psychiatrist further opined that in spite of this and his other rather dramatic assertions about his feelings and abilities, the applicant showed normal thinking processes and good alertness to reality.  Extensive psychological evaluation revealed a somewhat hysterical and over-dramatic approach to his problems which was often quite childish.  Yet the applicant's condition did not fit the pattern of any mental disease but rather of overall immaturity.  In conclusion, the examining psychiatrist recommended that the applicant's performance no longer justified retention and he should be separated under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) for inability to adapt to military life due to a chronic underlying personality disorder.

9.  On 9 December 1963, the applicant's unit commander rendered a statement summarizing his behavior.  The commander noted:

* he was a constant source of trouble
* his problems seemed to be caused by his inability to adjust to Army procedures and military life in general
* money was another source of trouble, mostly because he did not know how to manage his funds
* his misconduct on and off duty resulted in disciplinary action in the form of 3 Article 15s and 2 courts-martial, which caused more financial problems
* he was indebted to 3 business firms and several individuals (Army, Air Force, and civilian personnel) for various amounts of money
* the commander had counseled him numerous times in an attempt to assist in solving his problems
* his attitude always seemed to be one of "I don't care" and he did not seem interested in receiving help from his commander

10.  His unit commander notified him of the initiation of separation action against him under the provisions of Army Regulation 635-209.  On 12 December 1963, the applicant acknowledged he had been counseled and advised of the recommended action and that he had received a copy of the Commanding Officer's report and copies of all statements submitted as evidence and a list of names of persons who may make a statement to be used against him or who may testify against him.  He further acknowledged he had been afforded an opportunity to request counsel and declined this right.  He also denied an opportunity to have his case heard by a board of officers and to make a statement in his own behalf.
11.  On 21 November 1960, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 653-209 because of his inability to adapt himself to military life.  He noted the applicant had received punishment under Article 15, UCMJ on three occasions and had received two courts-martial.  All punishments were for offenses prejudicial to good discipline and took place within a 6-month period.  He also stated the applicant was initally assigned to the unit in one MOS, but his performance was not acceptable.  He was then utilized in another MOS in order to change supervision and routine duties.  He did not respond to either change of supervision or duties and was again placed in a duty position as a generator operator.  Again, the applicant did not respond to the counseling by officers or noncommissioned officers in the unit.
The commander rated his conduct as "Unsatisfactory" and his efficiency as "Fair."  He drank to a degree that he lost what reason he possessed, which was also limited.  His immaturity and excessive drinking and the impact they had on his decision making and duty performance were also mentioned several times in the supporting statements provided by officers and NCO's with whom he served.

12.  On 19 December 1963, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 with separation program number (SPN) 264 by reason of unsuitability due to character and behavior disorders and directed he receive a DD Form 257A (General Discharge Certificate).

13.  On 18 January 1961, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was discharged under the provisions of Army Regulation 635-209 with SPN 264.  He was credited with a total of 2 years, 1 month, and 15 days of creditable active service with 140 days of lost time.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included:  (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient 

personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  It 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 (formerly known as character and behavior 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, 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, 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.  The conviction by a 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was honorably discharged because at the time of his discharge he was young and immature.

2.  He contends his misconduct was the result of his young age and poor decisions.  His record shows he was merely 17 years of age at the time of his enlistment and between 18 and 19 years of age at the time of his offenses.  

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on three occasions, a summary court-martial on one occasion, and a special court-martial on one occasion.

4.  The evidence shows the applicant's only documented disciplinary actions were for minor offenses.

5.  The evidence shows the applicant was examined by a psychiatrist.  The examining psychiatrist that stated his attitude and behavior did not fit a pattern of any mental illness, but rather of an overall immaturity.

6.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability (character and behavior disorder) was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

7.  However, historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant's military service records should be corrected to show he was honorably discharged effective 18 January 1964 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

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.  issuing the applicant an Honorable Discharge Certificate, dated 18 January 1964, in lieu of the General Discharge Certificate of the same date now held by him; and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      _______ _   __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)                                         AR20110011814





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ABCMR Record of Proceedings (cont)                                         AR20110011814



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