BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110019336 


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 other than honorable conditions discharge to a fully honorable discharge. 

2.  The applicant states that back in 1976, he bought a house.  He had his discharge changed then but he never received the paperwork.  He is 61 years old now and he is trying to get some benefits.

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's records show he enlisted in the Regular Army on 25 October 1968 and he held military occupational specialty 68B (Aircraft Repairman).  He served in Vietnam from 16 April 1969 to 15 April 1970.  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 5 August 1970, failing to go at the time prescribed to his appointed place of duty
* 26 August 1969, leaving his place of duty without authority

5.  On 14 September 1969, the applicant's immediate commander initiated a Certificate of Unsuitability for Reenlistment (bar to reenlistment) against him citing his substandard performance, misconduct, and habitual disregard to military authority.  The applicant was furnished with a copy of this bar but he elected not to submit any statements on his behalf.  The bar was ultimately approved by the appropriate authority.

6.  On 23 November 1969, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave from 17 to 18 November 1969.

7.  On 2 January 1970, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unsuitability.

8.  On 2 January 1970, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were 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 on his own behalf.

9.  He further indicated he understood as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

10.  On 5 January 1970, he underwent a mental status evaluation wherein the military psychiatrist indicated that the applicant had a history of social maladjustment including suspension from school on several occasions.  In the Army, he had NJP on three occasions, mostly for AWOL.  He is basically a character-behavior disorder manifested by authority resentment and immature acting out behavior.  He had a negative attitude toward the Army and little motivation to change.  He did not respond to disciplinary action, counseling, or rehabilitative transfer, and further attempts were likely fruitless.  He demonstrated no significant psychiatric illnesses and he was cleared for administrative separation. 

11.  On 6 January 1970, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-209 for unsuitability.  

12.  On 11 May 1960, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 26 January 1970. 

13.  The DD Form 214 he was issued shows he completed a total of 1 year, 3 months, and 1 day of creditable active military service.  This form shows his character of service as "Under Other Than Honorable Conditions" and he was assigned separation program number (SPN) 264.

14.  On 29 January 1970, an official at the U.S. Army Personnel Center, Fort Lewis, WA, requested a correction to the applicant's character of service from "Under Other Than Honorable Conditions" to "Under Honorable Conditions."  However, there is no indication such a correction was made.

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

16.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  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.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the basic 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.

18.  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.

19.  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 contends that his discharge should be upgraded.

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 three instances of NJP, a bar to reenlistment, a rehabilitative transfer, and failure to respond to counseling.  Accordingly, his immediate commander initiated separation action against him.  

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.  However, it appears that when his DD Form 214 was submitted, it inadvertently listed his character of service as "Under Other Than Honorable Conditions" instead of "Under Honorable Conditions" as directed by the separation authority.  He would have been entitled to correction of his DD Form 214 to show his character of service as "under honorable (general) conditions)."  

4.  Nevertheless, 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. Despite the existence of three instances of NJP and a bar to reenlistment, nothing in his record determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.  

5.  Therefore, 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:

* showing the individual concerned was separated from the service with an honorable discharge on 26 January 1970
* issuing him an Honorable Discharge Certificate from the Army of the United States, dated 26 January 1970
* 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)                                         AR20110019336



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ABCMR Record of Proceedings (cont)                                         AR20110019336



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