IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010857 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states his record did not warrant a general discharge.  He contends he served a prior enlistment honorably and any disciplinary actions were minor.  He adds that after his discharge, he served with distinction as a firefighter until his retirement due to a disability that he incurred while fighting fires.

3.  The applicant provides no additional evidence.

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 31 May 1960 for a period of
3 years.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).  On 6 June 1962, he was honorably discharged for the purpose of immediate reenlistment and on 7 June 1962, he reenlisted for a period of 3 years.

3.  On 19 December 1963, the applicant accepted nonjudicial punishment for failing to report back to his unit at the proper time from sick call and for forging a sick slip so that he could be gone at the time he should have been present for duty.

4.  His record contains a neuropsychiatric examination that was conducted by the Mental Hygiene Consultation Service, Fort Carson, CO, dated 6 April 1964, based on a referral by his commander for pre-board evaluation under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge -Unsuitability).  The examining psychiatrist diagnosed the applicant with schizoid personality and recommended his separation from the service because he felt the applicant could not be rehabilitated to the extent where he could be expected to become a satisfactory Soldier.

5.  On 8 April 1964, his immediate commander recommended his separation from military service under the provisions of Army Regulation 635-209.  The commander indicated that while the applicant had attained excellent aptitude scores, he was incapable of adapting to a military environment and developing into a satisfactory Soldier.  Because of his disoriented behavior, he was unsuitable for most military training.  The commander further stated it was his belief that any extensive treatment directed towards rehabilitation was unfeasible and that retention in the service would lead to future adverse personnel actions.  

6.  On 8 April 1964, he acknowledged the proposed separation action for unsuitability and that a General Discharge Certificate could be issued to him.  He waived consideration of his case by a board of officers, representation by counsel, and he elected not to submit statements in his own behalf.

7.  On 29 April 1964, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.

8.  On 19 June 1964, a court-martial charge was preferred against him for failing to obey a lawful order from his superior noncommissioned officer by failing to have rank and unit shoulder patches sewn on his uniform, an order which it was his duty to obey.
9.  On 22 June 1964, he was found guilty by a summary court-martial of the above court-martial charge.

10.  On 8 July 1964, he was discharged under the provisions of Army Regulation 635-209 by reason of unsuitability, character and behavioral disorders, with the issuance of a General Discharge Certificate.  He completed 2 years, 1 month, and 2 days of net service this period for 4 years, 1 month, and 8 days of total active service.

11.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 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.  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.  Unsuitability included character and behavior disorders.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), which superseded Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability), 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.

14.  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" that would justify a less than fully honorable discharge.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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's request for an upgrade of his general discharge to an honorable discharge has been carefully considered.

2.  The evidence shows his discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The evidence also shows he was diagnosed with a personality disorder.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for discharge upgrades based on personality disorders.  Therefore, his application was reviewed using the revised criteria of Army Regulation 635-200.

4.  The Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify the 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.

5.  Based on the fact that his record shows only minor instances of misconduct, and in accordance with the revised provisions of Army Regulation 635-200, it would be appropriate at this time to upgrade the applicant's discharge to fully honorable based on the diagnosis of a personality disorder and the absence of substantial instances of indiscipline.

6.  In view of the foregoing, the applicant's record should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x_____  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.  issuing him a new DD Form 214 reflecting his character of service as "honorable"; and

	b.  issuing him an Honorable Discharge Certificate, dated 8 July 1964, in lieu of the General Discharge Certificate of the same date now held by him.




      ____________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)                                         AR20120010857



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ABCMR Record of Proceedings (cont)                                         AR20120010857



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