BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004103 


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 discharge to a fully honorable discharge.

2.  The applicant states he had just come off the battlefield and just wanted to go home.  He was tired of playing games with the military and had seen enough killing to last a lifetime.  He further states he was suffering from explosive anger and post-traumatic stress disorder (PTSD).

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs (VA) Summary of Benefits
* Special Orders Number 47, dated 16 February 1971
* DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* DA Form 20 (Enlisted Qualification Record)
* Western Union Telegram
* DA Form 2627 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* three DA Forms 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ)



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 at the age of 18 years, 7 months, and 20 days on 25 March 1968 for 3 years.  He completed training and he was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4; however, he held the rank/grade of private/E-1 at the time of separation.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ:

	a.  on 15 March 1969, for failing to go to his appointed place of duty on 8 March 1969;

	b.  on 26 May 1970, for possessing and wrongfully using marijuana on 12 April 1970;

	c.  on 9 November 1970, for being absent without leave for the period 27 July through 1 October 1970; and

	d.  on 23 November 1970, for failing to go to his appointed place of duty on 20 November 1970.

4.  The applicant was counseled by his chain of command on numerous occasions for his unsatisfactory attitude and duty performance.

5.  The applicant's record contains a psychiatric certificate, dated 18 December 1970.  This form shows the applicant underwent a psychiatric evaluation rendered by a military physician as part of the pre-separation process.  The examining physician noted the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He further opined that there were no disqualifying mental defects sufficient to warrant disposition through medical channels and provided a diagnosis of a passive-aggressive personality.  The physician recommended that the applicant be cleared for separation from military service as further rehabilitative efforts were felt to be poor.

6.  On 18 December 1970, his unit commander recommended his discharge because of character and behavior disorders.

7.  It is unclear when the applicant's unit commander notified him that he was recommending his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unsuitability.  However, the applicant consulted with legal counsel on 22 December 1970 and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.

8.  On 12 February 1971, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unsuitability with a general discharge.

9.  On 26 February 1971, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 10 months, and 9 days of total active service with 23 days of lost time.  His DD Form 214 also shows he was assigned separation program number code 264 (unsuitability – character and behavior disorder).

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  His service medical records are not available for review with this case and there is no indication in his military personnel records that shows he suffered from PTSD or an illness or an injury that rendered him unable to perform the duties required of his grade or MOS.

12.  The applicant submitted a VA rating decision, dated 21 January 2003, that shows the VA awarded him a 100-percent service-connected disability compensation for PTSD effective 16 October 1997.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based on the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-212.  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.

15.  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.

16.  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 he contends he should be entitled to an upgrade of his discharge, he did not provide evidence of an unfitting medical condition at the time of his discharge.  There is no evidence in his records and he did not provide any substantiating evidence which shows he was medically disqualified for retention or separation due to PTSD.  Nowhere in his records does it show he suffered an illness or an injury which rendered him unable to perform the duties required of his grade or MOS.

2.  Consideration of an upgrade of his discharge under the provisions contained within the Brotzman and later Nelson memoranda was contemplated; however, his record revealed a disciplinary history which included the acceptance of NJP under the provisions of Article 15 of the UCMJ on four separate occasions.  The applicant’s record of indiscipline clearly shows his quality of service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge under these provisions.

3.  In addition, the applicant was over 19 years of age at the time he committed his first offense.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  His behavior and failure to respond to counseling led his chain of command to initiate separation action against him.

4.  His administrative separation was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

5.  Therefore, in view of the foregoing evidence, he is not entitled to the requested relief.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  ___x_____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20120004103



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ABCMR Record of Proceedings (cont)                                         AR20120004103



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