IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110016252 


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 under honorable condition discharge to a fully honorable discharge. 

2.  The applicant states he had extreme family problems that caused severe anxiety problems at the time.  This caused undue stress on him which precipitated problems causing him to seek an early discharge.  He didn’t understand the extent of the anxiety until later.  His counseling helped him understand the severe stress that he has undergone. 

3.  The applicant did not provide any additional evidence. 

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 25 October 1966 and he held military occupational specialty 35M (Avionic Navigation And Flight Control Equipment Repairer). The highest rank/grade he attained was private first class/ E-3.

3.  His records show he was reported in an absent without leave (AWOL) from 14 May 1967 to 18 May 1967 and from on or about 24 June 1967 to 6 July 1967.

4.  He underwent a mental status evaluation at Fort Hood, TX, on 2 and 19 October 1967.  The military psychiatrist stated that the applicant had encountered considerable adjustment difficulties in the military due to his personality traits.  

* His responses to stress were maladaptive and impulsive and consisted of AWOLs and a self-destructive gesture
* He experienced a high level of tension
* There was no evidence of a neurotic or psychotic disorder
* His diagnosis was that of an emotionally unstable personality with passive dependent and passive aggressive personality traits
* He had no disqualifying mental defects sufficient to warrant disposition through medical channels

5.  On 30 October 1967, the applicant’s commander notified him that he was being recommended for separation under the provision of paragraph 6b of Army Regulation 635-212 (Personnel Separations) due to unsuitability.  The applicant acknowledged receipt of the notification on 30 October 1967.

6.  On 30 October 1967, the applicant acknowledged the above notification and subsequently consulted with legal counsel regarding the pending separation action.  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.  He further indicated he understood if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

7.  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.

8.  On 9 November 1967, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued DD Form 257A (General Discharge Certificate).  He further directed that the applicant's DD Form 214 was to be annotated in accordance with Army Regulation 635-212, paragraph 6b(2)(b) with separation processing number (SPN) 264.

9.  On 17 November 1967, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or discharge) 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 and 6 days of creditable active service and he had 19 days of lost time.  He was assigned SPN 264.

10.  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.

11.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

13.  Army Regulation 635-200, which superseded Army Regulation 635-212, 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. 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.

14.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1. The applicant contended that he was suffering from severe anxiety while serving in the military.  However, there is no evidence and the applicant has provided no evidence, to substantiate his claims.  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.

3.  The applicant was advised of the effects of a under honorable conditions discharge.  The applicant was afforded the opportunity to consult with counsel and submit statements in his own behalf.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

5.  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.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

6.  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.  

7.   The applicant’s military personnel record contains two instances of short AWOL periods. However, his record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.


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 17 November 1967;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 17 November 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)                                         AR20110016252





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ABCMR Record of Proceedings (cont)                                         AR20110016252



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