IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120009044 


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 an honorable discharge.

2.  He states he received a general discharge because he was bored and he went AWOL (absent without leave).  He could not adjust to just standing around.  He has never had any problems with the law or other people since he was discharged from the Army.  

3.  He provides no additional documents.  

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 30 November 1959. 

3.  The available evidence shows he was absent from his unit on 1 October 1960 and from 7 to 15 October 1960. 

4.  On 15 December 1960, he was convicted by summary court-martial of being absent from his unit on 3 December 1960.  He was sentenced to confinement at hard labor for 15 days, reduction to pay grade E-1, and a forfeiture of $50.00 pay for 1 month.

5.  On 3 January 1961, he was convicted by a special court-martial of being AWOL from 17 to 23 December 1960.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay for 6 months.

6.  On 23 January 1961, he underwent a psychiatric evaluation and he was diagnosed as having an emotional instability reaction, chronic, moderate, manifested by immaturity, nervousness, inefficiency and repeated AWOL's.  The applicant was psychiatrically cleared for separation.  The psychiatrist recommended the applicant be separated under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) due to traits of character which render him unsuitable for the military setting.  It was further recommended that any confinement adjudged be waived for the purpose of prompt administrative separation.  

7.  The company commander's notification of the proposed action to separate the applicant under the provisions of Army Regulation 635-209 by reason of unsuitability is not available for review.

8.  An undated statement shows the applicant acknowledged he had been counseled and advised of the basis for the recommended separation action.  He declined the opportunity to request counsel, or a hearing by a board of officers.  He also did not submit a statement in his own behalf.  

9.  On 10 February 1961, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-209, due to unsuitability with a General Discharge Certificate.  On 15 February 1961, the separation authority approved the applicant's separation action.

10.  On 20 February 1961, the applicant was discharged under the provisions of Army Regulation 635-209 due to unsuitability, character and behavior disorder.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 8 days active military service with   75 days of lost time.

11.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

12.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included (a) inaptitude; 
(b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; 
(d), enuresis, (e) chronic alcoholism; and (f) Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) currently governs the policies and procedures for the separation of enlisted personnel.  This regulation 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.

14.  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's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  However, the Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

3.  The Nelson Memorandum specified that the presence of a personality disorder (character and behavior disorder at the time) diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" that a fully honorable discharge should not be granted.  

4.  His military personnel record does not show he was convicted by a general court-martial or by more than one special court-martial.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his character and behavior disorder.

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.  voiding his current DD Form 214 with a general character of service;

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

	c.  issuing him an Honorable Discharge Certificate, dated 20 February 1961, in lieu of the general discharge of the same date he now holds.




      _______ _  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)                                         AR20120009044



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ABCMR Record of Proceedings (cont)                                         AR20120009044



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