BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110021596


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* there is no evidence to warrant less than an honorable discharge
* at the time he was a young man serving his country to the best of his ability
* he was released unjustly without credible evidence

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 was born on 25 May 1952.  He was inducted into the Army of the United States on 21 June 1972.  He was awarded military occupational specialty 94B (cook).

3.  On 2 December 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for two specifications of assault.

4.  On 9 May 1973, NJP was imposed against him for absenting himself from his place of duty and assault.

5.  On 25 May 1973, he was arrested by military police for drunk driving and possession of an illegal weapon (a razor).

6.  On 9 July 1973, he was convicted by a special court-martial of assault, violating a general regulation, and disorderly conduct.  He was sentenced to hard labor without confinement for 30 days, forfeiture of $100.00 pay per month for
1 month, and reduction to private (PV1)/E-1.

7.  Between 22 May 1973 and 10 July 1973, he was counseled for:

* vehicle violation
* improper conduct in his vehicle
* improper conduct with military police
* fighting
* attempting to start a fight
* being absent without leave
* disobeying an order

8.  On 10 July 1973, NJP was imposed against him for disobeying a lawful command by a superior commissioned officer.

9.  On 29 August 1973, he underwent a mental status evaluation and he was found mentally responsible.

10.  On 20 September 1973, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel 
Separations), paragraph 13-5b(3) for unsuitability – apathy, defective attitude, or inability to expend effort constructively.
11.  On 20 September 1973, he consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

12.  On 25 September 1973, the separation authority approved the recommendation for separation under the provisions of Army Regulation
635-200, paragraph 13-5b for unsuitability due to character and behavior disorders and directed the issuance of a general discharge.

13.  On 2 October 1973, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5b(2) with a general discharge.  His DD Form 214 further shows he was assigned a separation program number (SPN) of 264 (Unsuitability, character and behavioral disorders).  He completed 1 year,
3 months, and 12 days of total active service.

14.  There is no medical evidence that shows he was diagnosed with a character and behavior disorder by a psychiatrist.

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Paragraph
13-5b(2), provided for discharge due to unsuitability due to character and behavior disorders.  

17.  Army Regulation 635-200, paragraph 13-5b(3), provided for discharge due to unsuitability – apathy, defective attitude, or inability to expend effort constructively.

18.  Army Regulation 635-200 stated when separation for unsuitability was warranted, an honorable or general discharge was issued as appropriate by the member's military record.

19.  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 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. 

20.  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.

21.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  Although there is no evidence of record that the applicant was diagnosed with a character and behavior disorder by a psychiatrist, it appears the separation authority approved his discharge for unsuitability due to a character and behavior disorder with a general discharge on 2 October 1973.

2.  Nevertheless, 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 by reason of unsuitability, character and behavior disorder (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 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.  voiding his current DD Form 214 with a general character of service;

	b.  issuing him a new DD Form 214 with an honorable character of service; and

	c.  issuing him an Honorable Discharge Certificate, dated 2 October 1973, in lieu of the general discharge of the same date 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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20110021596



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