IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110024289 


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 be upgraded to a fully honorable discharge. 

2.  The applicant states:

* While in basic combat training, he received an emergency message to go home where he found out his mother had been murdered
* This affected him and he began to go in an absent without leave (AWOL) status
* After his second AWOL, his chain of command sent him to see a doctor who diagnosed him with emotional problems
* Had he not experienced those events, he would have made an excellent Soldier

3.  The applicant provides 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 enlisted in the Regular Army on 29 April 1966.  He completed basic combat training at Fort Gordon, GA, and he was subsequently reassigned to Fort Monmouth, NJ, for completion of advanced individual training.

3.  On 10 September 1966, he departed his training unit in an AWOL status.  He returned to military control on 21 September 1966.  

4.  On 23 September 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 10 to 21 September 1966.

5.  On 11 October 1966, he again departed his unit in an AWOL status and on 23 February 1967, he was dropped from the Army rolls as a deserter.  He returned to military control on 28 June 1967.  

6.  On 2 October 1967, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 11 October 1966 to 28 June 1967.  

7.  On 18 October 1967, he underwent a mental status evaluation and he was diagnosed as suffering from an emotionally unstable personality.  The military psychiatrists indicated the applicant:

* had no mental disease or defect sufficient to warrant disposition through medical channels; he was found to meet retention standards
* had a long history of failure to achieve, defective attitude toward authority, poor impulse control, and poor judgment
* was hostile and stated he would kill anyone who harassed him too much but he was well-oriented and free of any overt psychotic symptoms
* was believed he would not to be amenable to further rehabilitative efforts or have the potential to become an effective Soldier
* was responsible, both to distinguish right from wrong and to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* was cleared for any administrative decision deemed appropriate by his chain of command

8.  On 24 October 1967, the applicant's immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations) due to unsuitability for military service based on a lack of general adaptability and inability to learn.  His nature was characterized by apathy, defective attitude, and inability to expend effort constructively.

9.  On 30 October 1967, the applicant acknowledged the above notification and subsequently consulted with legal counsel regarding the pending separation action.  He was advised of its effect and the rights 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.  He further indicated he understood if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

10.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212, for unsuitability with a General Discharge Certificate.  His intermediate commander recommended approval.

11.  On 27 October 1967, consistent with the chain of command's recommendations, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212, paragraph 6b(2) (character and behavior disorder) and directed that he be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 3 November 1967.  

12.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability and issued a general discharge.  He had completed 9 months and 7 days of creditable active service and he had 271 days of lost time.  He was assigned Separation Control Number (SPN) of 264 (character and behavior disorder).

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

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability 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 inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

15.  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 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. 

16.  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.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 (Separation Documents) provided for

SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator 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 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 an extensive history of AWOL and two instances of NJP.  Accordingly, his immediate commander initiated separation action against him.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations in effect at the time.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.  However, 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 3 November 1967
* issuing him an Honorable Discharge Certificate from the Regular Army, dated 3 November 1967 in lieu of the General Discharge Certificate of the same date now held by him
* 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)                                         AR20110024289



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ABCMR Record of Proceedings (cont)                                         AR20110024289



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