IN THE CASE OF:	  

		BOARD DATE:	 12 December 2013 

		DOCKET NUMBER:  AR20130005665 


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 records to show:

* his rank/grade as specialist four (SP4)/E-4
* he was medically discharged

2.  The applicant states he did not shoot a young boy of 7 or 8 years of age who entered his guard post; the boy only had underwear shorts.  He was beaten up, humiliated, and busted to E-1 with an Article 15.  The commanders said it was necessary so he could be sent home because he was physically and mentally unfit for military service after serving 17 months in Vietnam.  He was a total vegetable or insane.  He has severe post-traumatic stress disorder and he thinks perhaps he should have killed the boy and everything would have been great for him.  Instead, he let the boy live and his own life just went dead.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 23 July 1968 and he held military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  He served in Vietnam from 16 January 1969 to on or about 24 May 1970.  His records show he was promoted to private first class (PFC)/E-3 on 28 January 1969 and to SP4/E-4 on 10 November 1969.

4.  On 13 February 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties.

5.  On 28 February 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted, in part, of reduction to PFC/E-3.

6.  On 2 March 1970, he underwent a separation physical at the 349th General Hospital in Vietnam.  He indicated he was in good health.  The military doctor found him medically qualified for separation.

7.  On 4 March 1970, he underwent a command-directed mental status evaluation at the 98th Medical Detachment.  The military psychiatrist stated:

	a.  The applicant was a 20-year old single enlisted member with approximately 1 year and 7 months of active duty service and 13 months in Vietnam who was command referred for a psychiatric evaluation in connection with administrative board proceedings under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

	b.  He was fully oriented, alert, and cooperative with normal motor behavior.  His speech was coherent, his mood was calm, and his affect was appropriate.  There was no evidence of thought disorder.  His memory was intact, his judgment was poor, and his insight was lacking.  His intelligence was considered to be dull.  No evidence of drugs or alcohol was present.  There was no evidence of psychosis or neurosis.

	c.  He was diagnosed as having a chronic, moderate, passive-dependent personality manifested by poor judgment, drug abuse, difficulty with authority, and poor motivation; moderate stress related to his Vietnam service; moderate predisposition (history of immaturity); and moderate impairment.  His condition was determined to be not in the line of duty, not due to own misconduct, existed prior to service (EPTS).

	d.  He was mentally responsible and able to distinguish right from wrong and adhere to the right.  He had the mental capacity to understand and participate in board proceedings.  Further rehabilitative efforts would not be productive.  There were no disqualifying mental defects sufficient to warrant disposition through medical channels; i.e., he met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, section XV.  He was cleared for any administrative actions deemed necessary by his chain of command.

8.  On 6 March 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for threatening a commissioned officer by saying, "Maybe you'll understand if I take your eyes out," or words to that effect and for striking a commissioned officer with his fist.  His punishment consisted, in part, of reduction to private (PVT)/E-1.

9.  On 19 March 1970 in a statement of counseling, the applicant's immediate commander stated he had frequently counseled the applicant due to his continual unacceptable conduct and bad behavior.  He had been in trouble several times since his arrival in the company.  He refused to go to work indicating that Army life was not for him.  He could not get along with superiors.  He had a very negative attitude and his constant shirking made him a drain on other manpower resources of the unit.

10.  On 6 April 1970 in a statement of summarization of counseling, the applicant's immediate commander indicated he provided the applicant with yet another opportunity to change his past pattern of shirking and apathetic attitude.  He continued to have the same negative attitude and pattern of unacceptable behavior.  He continued to require maximum supervision when performing normal duties.  He was highly undependable and could not be relied upon to perform even minor tasks.  Further rehabilitative efforts seemed futile and unfeasible.  His continued presence in the company was detrimental to the morale of other members.

11.  On 10 April 1970, the applicant's immediate commander notified him of his intent to initiate separation action against him for unsuitability under the provisions of Army Regulation 635-212 and recommended the issuance of a General Discharge Certificate.

12.  On 10 April 1970, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures/rights available to him.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event that a general discharge were issued to him.  He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

13.  On 20 May 1970, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-212 by reason of unsuitability.  The immediate commander indicated that discharge was warranted because of the applicant's passive-aggressive personality, habitual shirking, and negative attitude toward military service, which is a character and behavior disorder within the meaning of the regulation and is manifested by repeated commission of petty offenses.  His performance of duties was grossly impaired by his negative attitude, indifference, and apathetic approach toward duties and military service.  A rehabilitative transfer proved fruitless due to his poor motivation.  A bar to reenlistment was initiated against him on 1 March 1970.  The immediate commander recommended the issuance of a General Discharge Certificate.

14.  On 20 May 1970 after having determined 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 the issuance of a General Discharge Certificate.  The applicant was accordingly discharged on 25 May 1970.

15.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability with his service characterized as under honorable conditions.  He was assigned separation program number (SPN) 264.  He completed 1 year, 10 months, and 3 days of active service during this period.  His DD Form 214 also shows in:

* items 5a (Grade, Rate or Rank) and 5b (Pay Grade) – PVT and E-1
* item 6 (Date of Rank) – 6 March 1970

16.  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.

17.  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 on 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

18.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was revised on 1 December 1976 following settlement of a civil suit and superseded Army Regulation 635-209 and Army Regulation 625-212.  Thereafter, the type of discharge and the character of service were determined solely by the individual's military records 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 discharge upgrades 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 an 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 a 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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.

21.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2, in effect at the time, stated that items 3a and 3b would show the active duty rank/pay grade and date of rank at the time of the Soldier's separation.

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code 264 was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability for character and behavior disorders.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service:

	a.  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 instances of NJP.  It also included a history of negative counseling by his chain of command.

	b.  His continued misconduct and shirking necessitated his command referral for a psychiatric evaluation.  A military psychiatrist diagnosed him with a chronic, moderate, passive-dependent personality manifested by poor judgment, drug abuse, difficulty with authority, and poor motivation.  His condition was determined to be not in the line of duty, not due to own misconduct, EPTS.

	c.  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.

	d.  However, the law and regulation have since changed.  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.

2.  With respect to his rank/grade:

	a.  The evidence of record shows the applicant was reduced in grade not once, but on two separate occasions.  In each instance his reduction was the result of accepting NJP under the provisions of Article 15 of the UCMJ.  In each instance he had the option of demanding trial by a court-martial if he felt he was innocent or had mitigating circumstances.  Finally, in each instance he elected not to appeal his punishment.

	b.  The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ that ultimately led to his reduction to the lowest enlisted grade on 6 March 1970.  There is no evidence that he was promoted or reappointed to the rank/grade of SP4/E-4 between the date of his reduction to PVT/E-1 and the date of his separation from active duty.

	c.  The governing regulation provides that the DD Form 214 will show the active duty rank and pay grade at the time of the Soldier's separation.  The applicant's DD Form 214 correctly shows his rank as PVT/E-1.  There is neither an error nor an injustice.  In view of the foregoing evidence, he is not entitled to this portion of the requested relief.

3.  With respect to a medical discharge:

	a.  The applicant served on active duty from 23 July 1968 to 25 May 1970.  Prior to his separation he underwent a separation physical and he indicated that his health was good.  The military doctor found him to be in good health and fully qualified for administrative processing.  The applicant does not state what specific condition rendered him unfit and he does not provide substantiating medical evidence to corroborate his claim of medical unfitness for whatever condition he feels rendered him unfit at the time of his discharge.

	b.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation or found unfit.  Nowhere in his records does it show he:
* was issued a permanent physical profile that affected his duty performance
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* sustained an injury or an illness that warranted his entry into the Army Physical Disability Evaluation System

	c.  Even if he suffered an injury or an illness, the mere presence of an impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	d.  The applicant's military service was not interrupted by a medical reason.  It was interrupted by the determination by his chain of command that his actions led to their belief that he was unsuitable for military service.  In view of the foregoing evidence, he is not entitled to this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 showing he was honorably discharged from the Army on 25 May 1970 and issuing him an Honorable Discharge Certificate.




2.  The Board further determined 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 showing his rank/grade as specialist four (SP4)/E-4 and/or showing he was medically discharged.




      _____________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)                                         AR20130005665



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ABCMR Record of Proceedings (cont)                                         AR20130005665



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