IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120008556 


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 under honorable conditions to an honorable discharge and correction of his records to show he was awarded military occupational specialty (MOS) 11E (Armor Crewman).

2.  The applicant states he graduated from armor crewman training at Fort Knox, Kentucky, and was awarded MOS 11E.  He acknowledges that he drank a lot when he was younger, but he has been sober since 1 January 1980.  He adds, "he would like to clean up his past."

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty). 

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 6 January 1975 for a period of 3 years.

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

* item 6 (MOS):  11E1O, Armor Crewman, 30 May 1975
* item 17 (Civilian Education and Military Schools):  U.S. Army Armor Center, 11E1O, 8 weeks, completed 1975

4.  Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, Special Orders Number 94, dated 30 April 1975, awarded the applicant MOS 11E1O as his primary MOS (PMOS) effective 30 May 1975.

5.  Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, Special Orders Number 179, dated 20 August 1975, assigned the applicant to Headquarters and Headquarters Detachment, 21st Adjutant General Replacement Battalion (Germany), on 22 September 1975.

6.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his unit from 22 September to 31 October 1975.

7.  On 12 December 1975, the officer in charge of the applicant notified him that his commander was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 13 (Unsuitability).  The applicant was advised of his rights and the separation procedures involved.

8.  On 12 December 1975, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant:

	a.  waived a personal appearance before and consideration of his case by a board of officers;

	b.  waived representation by military counsel;

   c.  was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him;
   
	d.  elected to submit a statement in his own behalf.  He indicated that he wanted a discharge from the U.S. Army because he had a personal problem concerning his mother's health; he wanted to help her but serving in the Army stood in his way; and
	
	e.  placed his signature on the document along with his counsel's signature.

9.  On 17 December 1975, the commander recommended approval of the applicant's separation action.  He noted that the applicant displayed evidence of a character or behavior disorder (i.e., that he was apathetic and unmotivated), as evidenced by a statement of counseling of the applicant by a social worker/ psychology specialist.  He also noted the applicant had received NJP for being AWOL for 50 days and then dropped from the rolls once; however, he had no prior NJP or courts-martial.

10.  On 2 February 1976, the separation authority approved the commander's recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability and issued a General Discharge Certificate.

11.  Headquarters, U.S. Army Training Center, Fort Dix, New Jersey, Special Orders Number 041, dated 10 February 1976, reassigned the applicant to the U.S. Army Transfer Point for discharge under the provisions of Army Regulation 635-200, chapter 13, with Separation Program Designator (SPD) Code "JMB" and a General Discharge Certificate.

12.  The applicant's DD Form 214 shows he was discharged on 13 February 1976.  He had completed 11 months and 17 days of net active service and he had 52 days of lost time under Title 10, U.S. Code, section 972, from
22 September through 12 November 1975.  It also shows in:

   a.  item 9c (Authority and Reason):  Army Regulation 635-200, Chapter 10, SPD Code "KFS"; 
   
   b.  item 9e (Character of Service):  Under Honorable Conditions;

   c.  item 16a (Primary Specialty Number and Title):  09BOO Trainee, Evaluation Score (ES) None; and

	d.  item 27 (Remarks):  Separation from the service on temporary records; and

   e.  a DD Form 215 (Correction to DD Form 214), issued on 24 February 1983, corrected item 10 ( Reenlistment Code) and item 27 (Remarks) to show the proper reenlistment code and authority.

13.  A review of the applicant's records failed to reveal a copy of a Charge Sheet or a request from the applicant for discharge in lieu of trial by court-martial.  

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.

   a.  Chapter 2 contained guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

   b.  Section II (Preparation of DD Form 214) contains item-by-item instructions for completing the DD Form 214.  The instructions show for:

* item 9c, enter the statutory and/or regulatory authority for separation plus the SPD (Army Regulation 635-5-1 (SPD Codes)); do not show a narrative reason for separation
* item 16a, enter the MOS code, title, and date of award; if the enlisted person has not received an evaluation score, enter "None"

16.  Army Regulation 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies:

   a.  SPD code "KFS" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service based on conduct trial by court-martial; and 

   b.  SPD code "JMB" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability based on traits of character or behavior.
17.  Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for the administrative discharge of enlisted personnel. 

   a.  Chapter 10 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

   b.  Chapter 13 provides for separation due to inaptitude, personality disorder, apathy, and homosexuality.  The regulation required that separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

18.  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.

   a.  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.  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.

	b.  Chapter 3, 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 contends his DD Form 214 should be corrected to show he was awarded MOS 11E and his discharge should be upgraded.

2.  Records show the applicant completed the armor crewman course and he was awarded MOS 11E as his PMOS effective 30 May 1975.  Therefore, it would be appropriate to correct item 16a of his DD Form 214 to show this as his PMOS.

3.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, at the time of his separation, the type of discharge directed was appropriate and equitable.

   a.   However, the regulatory reason and SPD code recorded on his DD Form 214 are in error.
   
   b.  Therefore, it would be appropriate to correct item 9c and 9e of his
DD Form 214 to show the correct regulatory authority and reason.

4.  The evidence of record further shows the historically significant Brotzman-Nelson decisions imposed specific criteria to be applied to discharges for character and behavioral disorders.  Therefore, in view of the foregoing, the applicant's military service record should be corrected to show he was honorably discharged, effective 13 February 1976, under the extraordinary provisions of Department of the Army 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:

     a.  showing he was separated from the service with an Honorable Discharge Certificate on 13 February 1976;

     b.  issuing him an Honorable Discharge Certificate from the Army of the United States dated 13 February 1976 in lieu of the general discharge of the same date now held by him; and

     c.  issuing him a new DD Form 214 reflecting the above corrections to include the below changes:

* deleting from item 9c:  "AR 635-200 CHAP 10 SPD KFS" and adding "Army Regulation 635-200, Chapter 13, SPD JMB"
* deleting from item 16a:  "09BOO TRAINEE  ES NONE" and adding "11E1O ARMOR CREWMAN  ES NONE"



      _______ _   ___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)                                         AR20120008556



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ABCMR Record of Proceedings (cont)                                         AR20120008556



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