IN THE CASE OF:	   

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110023464 


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 it has been almost 50 years and he doesn’t want to die with a “bad” discharge. 

3.  The applicant provides no 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's record shows he was born on 16 August 1942 and he enlisted in the Regular Army on 10 May 1963 at the age of 20.  He completed basic combat and advanced individual training and was awarded military occupational specialty 140 (Field Artillery Basic).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  His record contains two DA Forms 2627 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) which show he received nonjudicial punishment (NJP) for the following offenses:

* 15 January 1964, for missing bed check
* 2 May 1964, for failing to go at the time prescribed to his appointed place of duty
* 16 August 1964, for failing to go at the time prescribed to his appointed place of duty
* 2 February 1965, for failing to register a privately owned vehicle
* 18 March 1965, for missing formation on 18 and 19 March 1965

4.  His record contains a DA Form 26 (Record of Court-Martial Conviction) showing he was tried and convicted by a summary court-martial for violation of Article 134 of the UCMJ for breaking restriction.

5.  The applicant’s record contains a Fort Riley Form 437 (Mental Hygiene Consultation Division – Certificate of Psychiatric Evaluation), dated 18 March 1965.  This form shows the applicant underwent a psychiatric evaluation on       11 and 17 March 1965 rendered by a military psychiatrist as part of a possible board action.  The psychiatrist diagnosed the applicant with paranoid personality, moderate, manifested by unsociability, eccentricity and a conspicuous tendency to utilize a protective mechanism, expressed by suspiciousness, envy, extreme jealousy and stubbornness.  The psychiatrist found that it could be presumed that the longstanding character and behavior disorder described would tend to exist permanently and he recommended the applicant for administrative separation.

6.  On 24 April 1965, the applicant's company commander recommended he be discharged under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).  The applicant’s commander further stated the applicant did not have the appropriate interest or mental attitude necessary to become a reliable Soldier and possessed certain character and behavior disorders.  Since his entry into the service, in May 1963, he had five Article 15s, two since 1 February 1965 and a Court-Martial in April 1965.  His commander also stated the applicant had been reassigned to his command in December 1964 in the hopes that a change of unit and commanders might help him.  Since joining the company, he worked in the Quartermaster Laundry and various other details within the company.  When not on sick call he had maintained a hostile and trying attitude toward the people he had worked for.   His lack of interest and poor attitude had caused a morale problem in the platoon to which he is assigned.

7.  It is unclear when his unit commander notified him of the initiation of separation action against him under the provisions of Army Regulation 635-209.  However, on 24 April 1965, the applicant acknowledged he had been counseled and advised of the recommended action and that he had received a copy of the Commanding Officer's report and copies of all statements submitted to support the recommendation for discharge and all names of prospective witnesses to appear or to submit a statement that would be used against him.  He further acknowledged he had been afforded an opportunity to request counsel and declined this right.  He also denied an opportunity to have his case heard by a board of officers and to make a statement in his own behalf.

8.  On 27 April 1965, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 by reason of unsuitability and directed he receive a General Discharge Certificate.

9.  On 12 May 1965, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was discharged under the provisions of Army Regulation 635-209 with separation program number 264.  He was credited with a total of 1 year, 11 months, and 17 days of creditable active service with 16 days of lost time.

10.  There is no indication the applicant 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 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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:  (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient 
personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  
12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  It 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 a personality disorder (formerly known as character and behavior 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, 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.

13.  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.  The conviction by a 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.  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.  The applicant’s record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on several occasions and receipt of a summary court-martial on one occasion.

2.  The evidence shows the applicant's only documented disciplinary actions were for relatively minor offenses.

3.  The evidence shows the applicant was examined by a psychiatrist who presumed the applicant’s longstanding character and behavior disorder would tend to exist permanently and it was his opinion the applicant could not be rehabilitated to the extent that he could be an effective Soldier.    

4.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  However, historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant's military service records should be corrected to show he was honorably discharged effective 12 May 1965 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

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.  issuing the applicant an Honorable Discharge Certificate, dated 12 May 1965, in lieu of the General Discharge Certificate of the same date now held by him; and

	b.  issuing the applicant 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)                                         AR20110023464



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ABCMR Record of Proceedings (cont)                                         AR20110023464



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