IN THE CASE OF:	   

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110015072 


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 discharge to an honorable discharge.  

2.  The applicant states:

* He was a good Soldier
* He admitted he was gay
* He did not act on his homosexual conditions
* He received nonjudicial punishment (NJP) for attempted theft but nothing was stolen by him

3.  The applicant provides 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 enlisted in the Regular Army on 30 September 1965 for 3 years. He held military occupational specialty 13A (Field Artillery Basic).  He served in Korea from 12 March 1966 to 16 March 1967 and he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

3.  On 7 February 1966, he was convicted by a special court-martial of one specification of stealing a wallet containing U.S. currency, the property of another Soldier.  The Court sentenced him to confinement at hard labor for 4 months and a forfeiture of $58.00 pay per month for 4 months.  The convening authority approved his sentence on 10 February 1966.

4.  On 26 February 1966, the convening authority ordered the unexecuted portion of the sentence to confinement at hard labor for 4 months suspended for
3 months.  Accordingly, the applicant, who had been confined since 9 February 1966, was released from confinement on 27 February 1966.

5.  His record shows he accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 10 May 1966, for failing to go at the time prescribed to his appointed place of duty on 10 May 1966
* 7 June 1966, for being absent from his unit on 4 June 1966
* 17 June 1967, for being AWOL for the period 16-17 June 1967

6.  On 28 June 1967, he underwent a mental status evaluation and he was diagnosed with an immaturity reaction with emotionally unstable personality traits and marked confusion in the area of sexuality.  The military psychiatrist stated: 

* the applicant reported a history of sexual relations with men since his early teens
* his sexual impulses created considerable tension and difficulties for him and he desired to be discharged
* aside from his sexual difficulties, he appeared to have interpersonal difficulties in his relationship with authority
* due to a general immature personality, he appeared to lack the emotional skills to function effectively
* 
he appeared to be isolated and at one time considered harming himself
* he had no psychotic or neurotic disorder and his military adjustment problems were felt to be due to long standing personality traits
* his problems were not amenable to a psycho-therapeutic approach in the military setting
* rehabilitative efforts were of no value and should be waived
* expeditious administrative separation was recommended
* there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels
* he was mentally responsible, able to both distinguish right from wrong and to adhere to the right
* he had the mental capacity to understand and participate in board proceedings
* cleared for any administrative decision deemed appropriate by his chain of command

7.  The applicant's immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to unsuitability for military service based on unsatisfactory performance, previous AWOL, inability to be rehabilitated through counseling and conviction, and the recommendation of the psychiatrist.

8.  On 3 July 1967, the applicant acknowledged notification of the proposed separation action and subsequently consulted with legal counsel.  He was advised of its effect and the rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further indicated he understood if a general discharge was issued, he could expect to encounter substantial prejudice in civilian life.

9.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability because of character and behavior disorder with a General Discharge Certificate. 

10.  On 13 July 1967, consistent with the chain of command's recommendations, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212 and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 1 August 1967.

11.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability and issued a general discharge.  He had completed 1 year, 1 month, and 14 days of creditable active service with 19 days of lost time.  He was assigned a separation program number (SPN) of 264 (Unsuitability, character and behavioral disorder).

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

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 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.

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

2.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes a court-martial conviction, two instances of AWOL, unsatisfactory performance, and three instances of NJP.  Accordingly, his immediate commander initiated separation action against him for personality disorder.  

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

4.  However, the Brotzman and Nelson Memoranda expanded the review policy and specified that the presence of a personality disorder (previously known as a character and behavior 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.  In the applicant's case, his misconduct, including the one special court-martial conviction and three instances of NJP are not determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. It now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

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.  showing the individual concerned was separated from the service with an honorable discharge on 1 August 1967;

	b.  issuing him an Honorable Discharge Certificate from the Regular Army, dated 1 August 1967 in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him 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)                                         AR20110015072



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ABCMR Record of Proceedings (cont)                                         AR20110015072



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