BOARD DATE:  4 June 2013

		DOCKET NUMBER:  AR20120018540 


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 his under honorable conditions general discharge be upgraded to honorable.

2.  The applicant states, in effect, he accepted the general discharge due to a hardship involving family problems.

3.  The applicant did not provide any supporting documentation.

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 25 May 1982.  He completed training and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).
3.  In a letter, dated 21 September 1983, addressed to the applicant's commander the applicant requested a hardship discharge.  He stated he was suffering mentally and physically due to the military and family problems.  He tried to adapt and he could not.

4.  On 17 October 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for willfully damaging government property and the property of another Soldier.

5.  On 20 October 1983, he accepted NJP under the provisions of Article 15, UCMJ for being absent from his appointed place of duty.

6.  An undated DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant was diagnosed with suffering from a passive-aggressive personality disorder.  It was determined that he met retention standards and there was no psychiatric disease or defect which warranted disposition through medical channels.  His diagnosis represented a character and behavior disorder.  The applicant was determined to be mentally responsible, able to distinguish right from wrong, and he had the mental capacity to understand and participate in board proceedings.  The DA Form 3822-R also shows:

	a.  The applicant's behavior was determined to be normal, he was fully alert, fully oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal and his memory was good.

   b.  The psychiatrist opined that the applicant and the problems presented by him were not amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The applicant was cleared for any administrative action deemed appropriate by his chain of command.

7.  On 1 December 1983, the applicant's immediate commander requested the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13 (Personality Disorder).  The commander indicated the applicant had received two NJP's, two counseling statements for missing formations, and one counseling statement for missing school.  He also noted the applicant had a mental evaluation showing a character and behavior disorder. 

8.  The applicant consulted with counsel.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He submitted a statement in his own behalf in which he requested an honorable discharge.  He stated that he had been a dedicated and hardworking Soldier.  His military attitude had changed drastically because of personal problems he experienced with his family.  He indicated he could not be an outstanding Soldier with the personal problems.

9.  The separation authority approved the applicant's discharge action and directed that his service be characterized as general under honorable conditions.

10.  On 12 January 1984, the applicant was discharged under the provisions of paragraph 5-13, Army Regulation 635-200, due to personality disorder.  He had completed 1 year, 7 months, and 11 days of net active service.  His DD Form 214 shows he received a general discharge.  The Narrative Reason for Separation is listed as "Personality Disorder."

11.  There is no evidence in the available record to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 5-13 at the time stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  Commanders would not take action prescribed in this paragraph in lieu of disciplinary action.  The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired.  

13.  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.

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 requests that his general discharge be upgraded to honorable.  He states, in effect, he accepted the general discharge because of a hardship due to family problems.

2.  His separation action was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  However, based on the reason for the applicant's discharge, the Brotzman/Nelson Memoranda requires the applicant's discharge to be upgraded to honorable.  

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;

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

	c.  issuing him an Honorable Discharge Certificate, dated 12 January 1984, in lieu of the General Discharge Certificate 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)                                         AR20110002706



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ABCMR Record of Proceedings (cont)                                         AR20120018540



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