IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130000552 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the time he served on the demilitarized zone (DMZ) in Korea.  He further requests, in effect, upgrade of his general discharge to an honorable discharge.

2.  He states his time on the DMZ in Korea from May to September 1969 is not recorded.  A Department of Veterans Affairs service-connected disability rating depends on this time being recorded.  He also questions why the requirement for counseling and rehabilitative reassignment was waived without a mental evaluation.

3.  He provides his DD Form 214, a memorandum pertaining to his discharge, and photocopies of envelopes.

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.  On 17 June 1968, the applicant enlisted in the Regular Army for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  Special Orders Number 108, issued by Headquarters, 38th Replacement Battalion, dated 8 May 1969, show he arrived in Korea on or about 8 May 1969.

4.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 9 June 1969 for failing to go at the time prescribed to his appointed place of duty on 6 June 1969
* 30 June 1969 for being absent without leave (AWOL) from 14 to 18 June 1969
* 10 September 1969 for failing to go at the time prescribed to his appointed place of duty on 7 September 1969
* 17 September 1969 being AWOL on 16 September 1969

5.  On 9 October 1969, he requested an extension of his overseas tour.  The applicant's battalion adjutant recommended disapproval of the request because the applicant had been "a constant disciplinary problem."  The adjutant noted the applicant had been detained by the military police on 14 September 1969 for a pass and uniform violation, for which he received a company-grade Article 15.  He also noted the applicant had been AWOL from 14 to 18 June 1969, for which he received a battalion-level Article 15.  Based on the adjutant's comments, the extension authority disapproved the extension request.

6.  On 20 January 1970, his commander notified him that action was being taken to require him to appear before a board of officers convened under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability) to determine whether he should be discharged before the expiration of his term of service.  He was notified that the action was being taken as a result of frequent incidents of a discreditable nature with military authority and because of character and behavior disorders as established by medical authority.  He was advised of his right to:


* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing

7.  On 20 January 1970, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-212.  He waived his rights.  He indicated he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were to be issued to him.

8.  In a memorandum to the separation authority, dated 20 January 1970, the applicant's commander recommended his discharge for unsuitability with a General Discharge Certificate and a waiver of counseling and rehabilitation requirements.  In support of the recommendation, his commander stated:

* discharge was recommended because the applicant's conduct and efficiency had deteriorated to the point where there was no purpose in his further retention
* from 1 June 1969 to date the applicant had been assigned to two different duty assignments in the company and had served under different commanding officers and noncommissioned officers
* in each assignment his performance of duty had been unsatisfactory and his military superiors felt that further rehabilitative efforts would be useless
* he had been counseled on several occasions by his commanding officer
* his performance was characterized by apathy toward the responsibilities and conduct demanded by the Army and by character and behavior disorders defined by competent medical authority
* he had no convictions by court-martial

9.  The applicant's commander and first sergeant (1SG) submitted statements in support of the recommendation.

	a.  The 1SG stated that since the applicant had been assigned to the unit he had been a chronic troublemaker.  He was AWOL on numerous occasions and was an admitted drug user.  His refusal to comply with basic rules of good order set a bad example for the other men in the unit.

	b.  His commander stated that in addition to the applicant's record of being AWOL he had shown an indifference to authority and complete apathy to his duties as a Soldier.


10.  On 23 January 1970, an Army psychiatrist certified the applicant had been psychiatrically examined upon referral by his commander.  The psychiatrist noted the NJP the applicant had received and that the applicant had a history of drug use.  An examination found:

* he was mentally able to distinguish right from wrong and adhere to the right and mentally responsible for his actions
* he had the capacity to understand the nature of administrative and board proceedings and to testify in his own behalf
* he met physical and mental standards prescribed by regulation
* his condition was a character and behavior disorder not amenable to hospitalization, treatment in a military setting, disciplinary action or reclassification to other forms of duty
* his condition was the result of deficiencies in personality development of such severity as to render him unsuitable for military service

The psychiatrist noted the applicant had not had a rehabilitative transfer since arriving in Korea.  He indicated the applicant's unit should consider such a transfer but, if not feasible, discharge him under the provisions of Army Regulation 635-212 as unsuitable.

11.  On 2 February 1970, the separation authority waived the requirement for counseling and rehabilitative reassignment and directed the applicant's discharge under the provisions of Army Regulation 635-212 with assignment of separation program number (SPN) 264, denoting unsuitability, character and behavioral disorders.  He further directed the applicant be furnished a General Discharge Certificate.

12.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he departed Korea on 5 February 1970 en route to the United States for separation processing.

13.  On 6 February 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability with a general discharge.  He completed 1 year, 5 months, and 26 days of total active service.  The DD Form 214 he was issued at the time shows in:

* item 22c (Foreign and/or Sea Service) the entry "USARPAC  0  7  5" indicating he completed 7 months and 5 days of foreign service in the U.S. Army Pacific


* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) he was awarded or authorized the:

* National Defense Service Medal
* Armed forces Expeditionary Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

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

15.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) currently governs 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.

17.  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 convictions by more than one special court-martial were determined to be "clear and demonstrable reasons" justifying a less than fully honorable discharge.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time of the applicant's release from active duty contained guidance on the preparation of the DD Form 214.  It stated item 22c was to show total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed.  The regulation did not provide for an entry on the DD Form 214 specifying an individual had served in Korea.

19.  An interim change to Army Regulation 635-5 (Separation Documents), dated 15 December 1971, stated to indicate Indochina and Korea service on or after
5 August 1964 in item 30 (Remarks) of the DD Form 214.  It stated to show service in Korea only, enter "INDOCHINA – NO, VIETNAM – NO, KOREA – YES."

20.  Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports his request for an upgrade of his general discharge to an honorable discharge.

2.  The record shows he was diagnosed with a character and behavior disorder by a psychiatrist, and he was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 6 February 1970 was accomplished in accordance with regulations then in effect.

3.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability, character and behavior disorder (now known as personality disorder) that subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where 


Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards.

4.  When the applicant was discharged, the regulation governing preparation of the DD Form 214 did not require an entry specifying service in Korea.  A later revision of the regulation governing preparation of the DD Form 214 provided for an entry noting service in Korea in the Remarks section of the form.  His foreign service is properly recorded in item 22c of his DD Form 214; however, there would be no harm in adding an entry to the Remarks section of his DD Form 214 noting he served in Korea.

5.  The governing regulation did not provide for an entry on the DD Form 214 specifying a period of service in Korea on the DMZ; therefore, and there is no basis for making such an entry on his DD Form 214.

6.  As a related issue, the applicant served during a qualifying period of service in Korea for entitlement to the Korea Defense Service Medal.  Therefore, his
DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 and an Honorable Discharge Certificate, dated 6 February 1970, in lieu of the DD Form 214 and General Discharge Certificate he now holds;

	b.  adding to the Remarks section of his reissued DD Form 214 the entry "INDOCHINA – NO, VIETNAM – NO, KOREA – YES"; and

	c.  adding to the Awards section of his reissued DD Form 214 the Korea Defense Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an entry specifying a period of service in Korea on the DMZ.



      ___________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)                                         AR20130000552



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ABCMR Record of Proceedings (cont)                                         AR20130000552



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