IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110020354 


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:

* his discharge is unjust due to his mental instability at the time
* he was admitted to the P-6 ward of the Maine Medical Center in the early months of 1971 
* he had a mental breakdown and started to see things that were not there
* he was sent to Augusta Mental Health Institute in Augusta, ME, in 1971 and from there to the children's home in Auburn
* he then joined the Army

3.  The applicant provides a self-authored statement and a copy of 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 was born on 19 June 1954.  As a juvenile, he was sent to the Boys Training Center, Portland, ME.  Records show he feigned a mental disorder in 1971 and was transferred to the Augusta Mental Health Institute where he was found to have no mental disease or defect, but was found to have "been acting on the bad advice of bad companions."

3.  On 9 August 1971, the applicant's legal guardian signed a DD Form 373 (U.S. Armed Forces Consent – Declaration of Parent or Legal Guardian for the Enlistment of a Minor in the U.S. Armed Forces) and the applicant enlisted in the Regular Army on 30 August 1971.  On 3 September 1971, the applicant entered basic combat training.

4.  The applicant's DD Form 214 and DA Form 268 (Report of Suspension of Favorable Personnel Actions) show he had 45 days of lost time during the following periods:

* 20 September to 7 October 1971
* 9 October 1971
* 15 October to 8 November 1971

5.  Summary Court-Martial Order Number 146, Headquarters, 2nd Basic Combat Training Brigade, U.S. Army Training Center, Infantry, Fort Dix, NJ, dated 18 October 1971, shows the applicant was found guilty of the following:

* being absent without leave (AWOL) on or about 20 September 1971 until on or about 8 October 1971
* being AWOL on 9 October 1971 until on or about 10 October 1971
* breaking restriction on 20 September 1971

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 November 1971, shows the following incident occurred on 19 October 1971:  "Patient removed the rubber portion of the eraser from an ordinary pencil, caused the metal part to become jagged with his teeth, and attempted to commit suicide by slashing his left wrist with this implement."

7.  A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 9 November 1971, shows the applicant's self-inflicted injury on 19 October 1971 was not in the line of duty and was due to his own misconduct.

8.  On 9 November 1971, the applicant was notified by his commander of the intent to initiate separation action against him for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

9.  The applicant acknowledged receipt of the notification and consulted with counsel.  He waived consideration of his case by a board of officers and representation by counsel.  Additionally, he declined to submit statements in his own behalf and acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable were issued to him, and he could be ineligible for many or all benefits as a veteran under Federal and State laws.

10.  The applicant's Report of Mental Status Evaluation, dated 11 November 1971, shows he was cleared for administrative discharge and he had no significant mental illness.  Notes on the evaluation state, in part, "Went home to be with his mother.  Couldn't take Army life.  Got one Article 15 and one court-martial.  Was in the stockade for 25 days.  Can't take Army life.  He would rather be home."

11.  On 18 November 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, assigned a separation program number code of 264 (unsuitability, character and behavioral disorders), and directed the issuance of a general under honorable conditions discharge.  On 20 November 1971, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 month and 7 days of creditable active service.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

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 the 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's request for an upgrade of his general discharge was carefully considered.

2.  There is no evidence the applicant suffered a mental breakdown prior to enlistment.  The record shows he was sent to a juvenile reformatory where he feigned illness to gain admission to a mental health facility.  Mental health personnel found him to be without mental disease or defect, but to have been acting on the bad advice of bad companions.  

3.  The applicant's military records show he had multiple instances of AWOL and a conviction by court-martial.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.   His administrative separation on 20 November 1971 was accomplished in accordance with regulations then in effect.  His discharge packet and his DD Form 214 shows he was separated with a separation program number of 264 (character and behavior disorder).

4.  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 behavioral disorders (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:

____X____  ____X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 issuing him a new DD Form 214 showing his character of service as honorable 
and an Honorable Discharge Certificate, dated 20 November 1971, in lieu of the DD Form 214 and General Discharge Certificate he now holds.



      _____________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)                                         AR20110020354



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ABCMR Record of Proceedings (cont)                                         AR20110020354



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