BOARD DATE:	25 October 2012

		DOCKET NUMBER:  AR20120007158


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, in effect, removal of the Separation Program Number (SPN) from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states all veterans who had these special codes on their
DD Form 214 were supposed to be notified of any and all options.  He did not receive any hearing concerning his discharge code either while in service or since then.  He recently found out about all the problems that can be associated with having this code on one's DD Form 214.  In August 2010, he filed for disability compensation and one of the records he was seeking had to do with a mental clinic report.  He was told it had to be sent to his primary care provider (PCP).  The documents are now missing.

3.  The applicant provides a copy of his DD Form 214.

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 18 March 1971.  He completed training and he was awarded military occupational specialty (MOS) 31N (Tactical Circuit Controller).

3.  On 24 September 1971, the applicant was reassigned to Korea and he was assigned to the 122nd Signal Battalion, 2nd Infantry Division.

4.  On 19 August 1972, a Report of Mental Status Evaluation was completed by the Division Psychiatrist.  The psychiatrist determined the applicant:

* had a passive-aggressive behavior
* his mood was depressed
* his thinking process and thought content was clear and normal
* his memory was good
* he had no significant mental illness
* he was mentally responsible
* he was able to distinguish right from wrong and able to adhere to the right
* he had the mental capacity to understand and participate in board proceedings

5.  On 24 August 1972, in a statement to the applicant's commander, the Division Psychiatrist certified the applicant was seen by the Mental Hygiene Consultation Service.  He was diagnosed with a character-behavior disorder with the recommendation for separation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability).

6.  On 30 August 1972, the applicant's commander notified the applicant that he was being considered for elimination from the service for unsuitability under the provisions of Army Regulation 635-212, paragraph 6b(2) due to character and behavior disorders.

7.  On 7 September 1972, the applicant was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-212.  The applicant waived consideration by and personal appearance before a board of officers, waived representation by counsel, and 


elected not to submit a statement in his own behalf.  He indicated he understood he may expect to encounter substantial prejudice in civilian life in the event he received a general discharge.  He further understood that as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  The commander subsequently recommended the applicant's separation under the provisions of Army Regulation 635-212, paragraph 6b(2) for unsuitability by reason of character and behavior disorders.  He stated the applicant had a history of unadaptability due to deficiencies in emotional and personality development.  He was not amenable to any form of punishment, retraining or rehabilitation within the military setting.  The commander recommended a general discharge because the applicant had accepted nonjudicial punishment (NJP) under the provisions Article 15, Uniform Code of Military Justice (UCMJ) on five occasions and he received twelve negative counseling records.

9.  The battalion commander recommended approval of the discharge recommendation.

10.  On 9 September 1972, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, paragraph 6b(2) and directed the issuance of a General Discharge Certificate.

11.  On 29 September 1972, the applicant was discharged accordingly.  He completed 1 year, 6 months, and 12 days of total active service.  The DD Form 214 he was issued at the time shows in item 11c (Reason and Authority) the entry "AR (Army Regulation) 635-212  PARA (paragraph) 6B(2)  SPN 264."

12.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism;
(5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, states in paragraph 1-2e that the SPN is a number used in statistical accounting to 


represent the specific authority and reason for separation.  SPNs are an integral part of the authority for separation shown on the DD Form 214.  A listing of SPNs and Authority Governing Regulations is provided in Army Regulation 635-5, Appendix A.  The SPN "264" is listed for enlisted personnel separated for unsuitability, character and behavior disorders, Army Regulation 635-212.

14.  Army Regulation 635-200 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the SPN from his DD Form 214.  He states he did not receive any hearing concerning this discharge code and he found out about all the problems associated with having the code.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The governing regulation at the time required he receive the corresponding SPN of "264."  Therefore, there is no basis for granting this portion of the applicant's request.

3.  It is presumed the applicant also requests an upgrade of the characterization of his discharge.  Based on the applicant's authority and reason for discharge, the Brotzman/Nelson Memoranda require the applicant's discharge be upgraded to honorable.  Therefore, it would be appropriate at this time to upgrade his discharge from a general to an honorable discharge.
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.  voiding his current DD Form 214;

	b.  issuing him a new DD Form 214 reflecting his character of service as "Honorable"; and

	c. issuing him an Honorable Discharge Certificate, dated 29 September 1972, in lieu of the General Discharge Certificate 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 removing the SPN from his DD Form 214.



      __________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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20120007158



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