BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110021584 


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 that his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he had post-traumatic stress disorder (PTSD) at the time of his discharge.

3.  The applicant provides no supporting documentation.

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 service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army on 23 July 1970, completed training, and was awarded the military occupational specialty 63B (Wheeled Vehicle Mechanic).  

4.  He received a letter of appreciation on 25 November 1970 for his efforts, as an acting corporal, in uniting his class to achieve superior class objectives.

5.  While stationed in Germany, the applicant reenlisted on 28 May 1971 with a guarantee of service in Vietnam.

6.  The applicant served in Vietnam from 31 August 1971 through 8 May 1972.

7.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

	a.  2 February 1972, for being drunk in the company area; and

	b.  3 February 1972, for being absent from his place of duty for 9 hours.

8.  On 5 September 1972, a special court-martial found the applicant guilty of being absent without leave on two occasions for a total of 35 days.  The sentence imposed was confinement for 29 days.  The military judge also recommended the applicant be administratively eliminated from the service.  

9.  On 18 September 1972, the court-martial convening authority approved the findings and sentence but suspended the execution of the confinement for three months.  However, no elimination action was initiated at this time.

10.  The applicant received NJP on 18 May 1973, for failure to go to his appointed place of duty on two occasions.  The punishment for this NJP was reduction to pay grade E-1 (suspended for 60 days), 14 days restriction, and 14 days extra duty.

11.  On 26 May 1973, while on restriction, the applicant was arrested by civilian authorities and charged with being drunk and disorderly. 

12.  On 30 May 1973, the suspension of an NJP reduction to pay grade E-1 was vacated due to the applicant's breaking restriction.


13.  A bar to reenlistment was imposed on 13 June 1973.

14.  On 19 June 1973, the applicant was arrested by civilian authorities for driving under the influence (DUI).  The civilian judge reduced the DUI charge to failure to control the speed of his vehicle and imposed a $50.00 fine and one year probation.

15.  On 28 June 1973, the applicant's unit commander initiated separation proceedings for unsuitability. 

16.  The applicant acknowledged the separation action and waived all of his rights on 2 July 1973. 

17.  The 5 July 1973 unit commander's recommendation for administrative elimination noted the reasons for the recommendation were the applicant's misconduct with civil and military authority and his inability to become a productive Soldier.  He stated he saw no hope for rehabilitation.  In this recommendation he also referenced a psychiatric evaluation that stated the applicant was emotionally unstable with an inadequate personality.  The attending physician strongly recommended the applicant be eliminated from the service.  A copy of this evaluation is not included in the separation documents. 

18.  On 10 July 1973, the discharge authority approved the recommendation for discharge under Army Regulation 635-200, paragraph 13-5b(2) (Character and Behavior Disorders).  He directed that the applicant be discharged and issued a GD with a separation program number (SPN) of 264 (Personality Disorder). 

19.  The applicant was discharged on 17 July 1973 with a GD.  He had 2 years, 10 months, and 16 days of creditable service with 39 days of lost time.  The DD Form 214 shows two additional periods of lost time not reflected elsewhere in the record.

20.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

21.  Army Regulation 635-200 (Personnel Separations), chapter 13, as in effect at that time, applied to separations for unfitness and unsuitability.  Paragraph 
13-5b provided for separation for unsuitability due to inaptitude, character and behavior disorders (personality disorders), apathy, alcoholism, or homosexuality. The regulation required that separation action would be taken when, in the 

commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority.  

22.  Army Regulation 635-200 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, 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 record does not contain and the applicant has not provided any evidence that he is now or at the time of his misconduct was suffering from PTSD or that the diagnosis of a personality disorder was in error. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  However, subsequently historically significant administrative decisions imposed specific criteria to be applied in this type of case.  His having been convicted by only one special court-martial indicates the applicant meets those criteria; therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of the Brotzman/Nelson memoranda.

4.  In view of the above, the applicant’s discharge should be upgraded to honorable and a new DD Form 214 should be issued.

BOARD VOTE:

__x___  _x_______  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 that the applicant was separated from the service on 17 July 1973 with an Honorable Discharge Certificate;

	b.  issuing to him an Honorable Discharge Certificate, dated 17 July 1973, in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him a new DD Form 214, effective 17 July 1973, showing his characterization of service as honorable.




      _______ _   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)                                         AR20110021584





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ABCMR Record of Proceedings (cont)                                         AR20110021584



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