BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008057 


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, upgrade of his general discharge to an honorable discharge.

2.  He states he does not understand or know why he was given this type of discharge.  He did not have any problems that would have given him this discharge.

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 December 1971.  He reported to Fort Ord, CA for training.

3.  On 17 February 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 6 to 8 February 1972.

4.  His record contains Summary Court-Martial Order Number 54, issued by Headquarters, 2nd Advanced Individual Training Brigade, Fort Ord, dated 
28 March 1972.  These orders show he pled guilty and he was found guilty of being AWOL from 3 to 20 March 1972.  He was sentenced to 22 days confinement at hard labor and forfeiture of $178.00 per month for 1 month.

5.  On or about 3 May 1972, he accepted NJP under Article 15, UCMJ for being AWOL from 22 to 24 April 1972.

6.  His record contains an undated DA Form 2496 (Disposition Form), subject:  Mental Status Examination.  This document is sloppily prepared and does not identify the applicant nor does it indicate the applicant had a character or behavior disorder.  However, on 14 June 1972, the unit commander advised the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability), paragraph 6b (character and behavior disorder), by reason of unsuitability.  He was advised of his right to:

* present his case before a board of officers
* submit statements in his own behalf
* representation by counsel
* waive his rights in writing
* consult with counsel prior to waiving his rights

7.  The applicant acknowledged receipt of the proposed action and waived consideration of his case by and personal appearance before a board of officers and representation by counsel.  He also indicated he was not submitting any statements in his own behalf.  He further acknowledged he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

8.  On 14 June 1972, his unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-212 for unsuitability with a general discharge.  The commander noted the reason for the action was that the applicant had a very poor attitude towards the Army and he would not 
make any effort to improve himself.  He had been AWOL three times and he stated he would do whatever was necessary for him to be discharged.

9.  The commander also requested that rehabilitative attempts be waived.

10.  On 27 June 1972, the intermediate commander recommended approval with issuance of a General Discharge Certificate.

11.  On 28 June 1972, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the applicant be furnished a General Discharge Certificate.

12.  Accordingly, on 14 July 1972, he was discharged under the provisions of Army Regulation 635-212.  He had completed 5 months and 9 days of total service with 39 days of time lost due to AWOL and confinement.  The
DD Form 214 he was issued at the time shows in item 11c (Reason and Authority) the entry "SPN 264."  This entry reflects he was assigned a Separation Program Number of 264 that indicates he was separated by reason of "character and behavior disorders."

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

14.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis, and alcoholism.  Members separated under these provisions could receive either an honorable or a general discharge.

15.  On 23 November 1972, Army Regulation 635-200 was published and became the governing regulation for the administrative separation of enlisted personnel that included the categories of separations previously governed by Army Regulation 635-212.  A Department of the Army (DA) message number 302221Z, dated March 1976, changed "character and behavior disorder" to "personality disorder."

16.  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 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.

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It shows, in part, when separation is because of a personality disorder, the service of a Soldier separated will be characterized as honorable unless an entry level separation is required under chapter 11.

	a.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct (or both) while in an entry level status.  This provision of regulation applied to individuals who had demonstrated inability, lack of reasonable effort, or failure to adapt to the military environment.  Counseling and rehabilitation requirements are essential when chapter 11 is the reason for separation.  The regulation states that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.  The Soldier's service is uncharacterized when separated under this chapter.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

19.  Army Regulation 635-5-1 (Separation Codes), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of character and behavior disorder.

20.  The Department of Veterans Affairs (VA) website http://www.vba.va.gov/VBA lists the variety of Federal benefits available to veterans and their dependents.  Eligibility for most benefits is based upon discharge from active military service under other than dishonorable conditions.  Honorable and general discharges qualify a veteran for most VA benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated under the unsuitability (character and behavior disorder) provisions of the regulation in effect at the time and he was given a general discharge.  However, his record is void of a completed Mental Status Examination by a psychiatrist or doctor in psychology and he has no conviction by either general or special courts-martial.   

2.  In view of the foregoing, his characterization of service should be upgraded to honorable in accordance with the Nelson 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 upgrading his general, under honorable conditions discharge to a fully honorable discharge. 




      ________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)                                         AR20120008057



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ABCMR Record of Proceedings (cont)                                         AR20120008057



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