IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021602 


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:

* an upgrade of his general discharge to an honorable discharge
* issuance of a new DD Form 256 (Honorable Discharge Certificate)

2.  The applicant states:

* his discharge was reviewed prior to 1978 under Urban vs. Secretary of Defense and Department of Defense Directive 1332.28
* the U.S. Army should bear some responsibility for putting him in a situation and location that had drugs readily available and due to the stress he experienced due to receiving orders for Vietnam
* he readily accepts his faults and he has remorse
* his discharge should be upgraded based on fairness and in the interest of justice, length of time, his completion of rehabilitation, and factors known and unknown

3.  The applicant states he provided copies of court orders that he recently discovered in his military records.  The court orders were not attached to his application.


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 16 August 1971.  He completed training and he was awarded military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained while on active duty was private first class/
E-3.

3.  The applicant was punished under the provisions of Article 15, Uniform Code of Military Justice, on the following occasions:

* 1 October 1971, for being absent without leave (AWOL) from 30 August to 28 September 1971
* 19 July 1972, for being AWOL from 28 April to 28 June 1972

4.  A DA Form 3647 (Clinical Record Cover Sheet), dated 28 June 1972, shows the applicant received psychiatric treatment after he was brought to the hospital by Denver police.  Item 36 (Diagnoses – Operations and Special Procedures) of his DA Form 3647 shows:

* drug dependence:  heroin; not in the line of duty and due to his own misconduct
* schizoid personality, chronic, severe; manifested by social withdrawal and drug use; degree of impairment for further military duty, marked
* he used heroin every day for 4 months
* he was cooperative, detoxified, and referred to other drug rehabilitation programs 

5.  On 19 July 1972, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Discharge-Unfitness and Unsuitability), paragraph 6b for unsuitability due to character and behavior disorders of schizoid personality and drug dependence.  He notified him he was recommending the issuance of a general discharge.

6.  The applicant acknowledged notification of the commander's intent to recommend him for separation.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for unsuitability, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He also elected not to submit statements on his own behalf.  He acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

7.  On 25 July 1972, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-212 and directed the issuance of a General Discharge Certificate.

8.  On 25 August 1972, the applicant was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 7 months and 11 days of creditable active military service with 4 months and 26 days of lost time.

9.  On 12 August 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  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.

12.  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 the 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 evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service included an extensive history of AWOL and use of illegal drugs.  Accordingly, his immediate commander initiated separation action against him.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations in effect at the time.  The type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.  

3.  However, in view of the change in policy, the general discharge issued to the applicant is inconsistent with the standards for discharge for unsuitability, character and behavioral disorders (now known as personality disorders), which subsequently became effective.  Since these new standards authorize an honorable discharge in cases where Soldiers are diagnosed with a personality disorder and were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards. 



BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 issuing him a new DD Form 214 showing his character of service as honorable 
and an Honorable Discharge Certificate, dated 25 August 1972, in lieu of the DD Form 214 and General Discharge Certificate 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)                                         AR20120021602



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ABCMR Record of Proceedings (cont)                                         AR20120021602



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