IN THE CASE OF:	

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002102 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 October 1971 to show:

   a.  In item 13a (Character of Service) he received a general discharge "under honorable conditions" instead of a discharge "under conditions other than honorable."

   b.  His correct military occupational specialty (MOS).

2.  He also requests that Special Orders Number 272, dated 29 September 1971, and his DD Form 257A (General Discharge Certificate) be corrected to show the spelling of his first name as "xxuart" instead of "xxeward."

3.  The applicant states, in effect:

* his MOS was changed when he reenlisted in December 1970
* DD Form 214 should show his MOS as 64A1O (Light Vehicle Driver)
* MOS 64B2O (Heavy Vehicle Driver) was his duty MOS

4.  The applicant provides:

* DD Form 214 for the period ending 5 October 1971
* Special Orders Number 272, dated 29 September 1971
* Page 1 of his DA Form 20 (Enlisted Qualification Record)
* Special Orders Number 139, dated 19 May 1971
* DA Form 4 (Enlistment Contract), dated 4 December 1970

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 15 October 1968 for a period of 3 years under the first name "xxuart."  He completed his training and was awarded MOS 57A (Duty Soldier) on 9 April 1969.  He served in MOS 57A in Vietnam from 17 October 1969 to 10 October 1970.  On 3 December 1970, he was honorably discharged for immediate reenlistment. 

3.  His DD Form 214 for the period ending 3 December 1970 shows his first name as "xxuart" and his MOS as 57A1O.

4.  He reenlisted on 4 December 1970 for a period of 3 years.  His enlistment contract shows his first name is "xxuart."

* he reenlisted for his present duty assignment (Germany)
* his primary MOS is shown as 57A1O  

5.  He served in Germany from 24 November 1970 to 10 April 1971.

6.  Between February and June 1971, nonjudicial punishment was imposed against the applicant on three occasions for:

* failing to go at the time prescribed to his appointed place of duty (three specifications)
* disobeying lawful orders (two specifications)
* being absent without leave (AWOL) from 2 to 3 June 1971 


7.  His record is void of his discharge packet; however, discharge orders, dated 
4 October 1971, show he was discharged on 5 October 1971 under the provisions of Army Regulation 635-212, paragraph 6(b), for unsuitability due to character and behavior disorder with a general discharge and the issuance of a DD Form 257A (General Discharge Certificate).  He completed 2 years, 
11 months, and 8 days of total active service with 1 day of lost time.

8.  His DD Form 214 for the period ending 5 October 1971 shows:

* his first name is "xxuart"
* his primary MOS as 57A1O, effective 9 April 1969
* the entry "UNDER CONDITIONS OTHER THAN HONORABLE" in item 13a
* confirms he was issued a DD Form 257A

9.  His DD Form 257A is not in the available record and he did not provide it for review.

10.  There is no evidence which shows he was awarded MOS 64A or MOS 64B.

11.  His DA Form 20 shows his duty MOS as 64A1O on 30 April 1971.

12.  He provided Special Orders Number 139, dated 19 May 1971, which show his MOS as 64B2O.

13.  He also provided Special Orders Number 272, dated 29 September 1971, which show his first name as "xxeward."

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and 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 and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

15.  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. 

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, 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 requests his MOS be changed on his DD Form 214 for the period ending 5 October 1971.  However, evidence shows he was awarded MOS 57A on 9 April 1969.  Notwithstanding the entries on the orders provided by the 
applicant or his DA Form 20 which show MOS 64A and MOS 64B, no evidence shows he was awarded either MOS.  In the absence of orders awarding him the MOSs, there is insufficient evidence on which to amend his DD Form 214 for the period ending 5 October 1971.

2.  The applicant requests his first name be corrected on Special Orders Number 272, dated 29 September 1971.  The available evidence shows his first name as "xxuart."  Therefore, it would be appropriate to correct the spelling of his first name on these orders.     

3.  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 5 October 1971.

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 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:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending the spelling of his first name on Special Orders Number 272, dated 29 September 1971, to show his name as it is listed on the DD Form 214, dated 5 October 1971; 

   b.  voiding his current DD Form 214 with an under conditions other than honorable character of service;

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

	d.  issuing him an Honorable Discharge Certificate, dated 5 October 1971, in lieu of the general discharge of the same date he now holds.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to changing the name on his DD Form 257A or the MOS on his DD Form 214, dated 5 October 1971.  




      _______ _   __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)                                         AR20120002102



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ABCMR Record of Proceedings (cont)                                         AR20120002102



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