IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130000919 


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 that his general discharge be upgraded to fully honorable. 

2.  The applicant states the Army was not unjust to him; he simply failed to seek help earlier.  The Army is not responsible for the emotional turmoil within him that he brought with him into the Army.  He lived a harsh life and it was not caused by his military service.  One of his sergeants was a good sergeant because he took the time to listen and address the issue with him at the time.  

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 18 July 1967 and he held military occupational specialty 71H (Personnel Specialist).  He served in Germany from 17 December 1967 to 10 September 1968. 

3.  While in Germany, he was honorably discharged on 1 April 1968 for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that captured this period of active service.

4.  He reenlisted on 2 April 1968 and upon completion of his Germany tour, he was reassigned to the 602nd General Supply Company, Sharpe Army Depot, Lathrop, CA.  

5.  On 24 October 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his unit from 18 to 21 October 1968 and for breaking restriction.  

6.  He again served in Germany from 17 December 1968 to on or about 6 June 1969.  He was assigned to the 2nd Battalion, 41st Artillery, 3rd Infantry Division. 

7.  On 5 March 1969, he underwent a mental status evaluation.  He was diagnosed with a schizoid personality characterized by isolation, loneliness, difficulty getting along with others, and heavy investment in anti-social activity.  He was laboring under a long-standing character and behavior disorder, not likely to be amenable to treatment while in the service.  An administrative discharge was recommended. 

8.  On 6 June 1969, he departed his unit in an absent without leave (AWOL) status and on 6 July 1969, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 10 October 1969.

9.  On 13 October 1969, he underwent a mental status evaluation at Letterman General Hospital, San Francisco, CA, after having been admitted to the psychiatric ward on 10 October 1969.  He was diagnosed with an anti-social personality.  The military psychiatrist stated there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He recommended the applicant's return to duty with a strong recommendation for administrative separation.  

10.  On 12 November 1969, the applicant's immediate commander recommended the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged for unsuitability (character and behavior disorder). 
11.  On 12 April 1969, the applicant acknowledged that he had been counseled and advised of the basis for the contemplated separation action for unsuitability and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.  He indicated he fully understood that if the discharge authority approved the recommendation for discharge, the discharge authority would determine the type of discharge he would receive.  He finally indicated he voluntarily signed this acknowledgement of his own free will. 

12.  On 18 November 1969, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unsuitability.  

13.  On 24 November 1969, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 2 December 1969.  The DD Form 214 he was issued shows he completed 1 year, 6 months, and 10 days of active service during this period and he had 51 days of lost time.  He was assigned separation program number (SPN) 264.

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

15.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  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.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

16.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.
17.  Army Regulation 635-200, which superseded Army Regulation 635-209 and Army Regulation 625-212, was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service was 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. 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.

18.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

19.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  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 several periods of AWOL and one instance of NJP.  Accordingly, his immediate commander initiated separation action against him for a character and behavior disorder.  The applicant’s administrative separation was accomplished in compliance with applicable regulations at the time.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  However, it now appears the applicant’s overall service record and his diagnosed character and behavior disorder (now known as personality disorder) warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

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:

	a.  showing the individual concerned was separated from the service with an honorable discharge on 2 December 1969;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 2 December 1969, in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him a new DD Form 214 reflecting the above corrections.



      ____________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)                                         AR20130000919





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ABCMR Record of Proceedings (cont)                                         AR20130000919



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