BOARD DATE:	 28 January 2014 

		DOCKET NUMBER:  AR20130008577 


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 an upgrade of his discharge under honorable conditions (general) to an honorable discharge.

2.  The applicant states, in effect, he served his country honorably and with great respect during his period of service which included a tour of duty in Vietnam.  He was told his discharge would be upgraded to an honorable discharge after 6 months.  However, had he known that this was a false statement at the time he would have never accepted a general discharge.

3.  The applicant provides no additional 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 7 February 1970 and he held military occupational specialty 13E (Field Artillery Operations and Intelligence Assistant).  He served in Vietnam from 12 April to 18 September 1970 and he was subsequently reassigned to Fort Benning, GA.

3.  On 23 March 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 13 to 22 March 1971.

4.  In a Mental Hygiene Consultation Service Report, dated 26 August 1971, a psychiatrist reported he had examined the applicant and diagnosed him with a basic character and behavior disorder which was not amenable to hospitalization, treatment in a military setting, disciplinary action, training, or reclassification to another type of duty.

	a.  The psychiatrist noted the applicant's history of passive-aggressive behavior toward authority figures, a history of prolonged periods of AWOL, irresponsible behavior, and immature actions indicated a personality disorder of a severe type.  The prognosis for his successful completion of military service was poor.

	b.  The psychiatrist found no evidence of mental disease, defect, or derangement sufficient to warrant medical disposition.  He found the applicant to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board and other legal proceedings.

	c.  The applicant was psychiatrically cleared for separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

5.  On 7 September 1971, the applicant's commander advised the applicant that he had initiated proceedings to discharge him from the service under the provisions of Army Regulation 635-212.  The applicant's commander informed the applicant that the basis for the proposed discharge action was the applicant's character and behavior disorders.

6.  His commander noted that the applicant was counseled on 3 February 1971 for the unlawful use of drugs and on 22 March 1971 for being AWOL.  Further, the applicant was assigned to the unit while he was under investigation by the Criminal Investigation Division for the alleged possession of marijuana.  He recommended the issuance of a General Discharge Certificate.

7.  On 9 September 1971 after consulting with counsel, he waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected not to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

8.  On 14 September 1971, the appropriate authority approved a request for waiver of counseling and rehabilitation due to the applicant's behavior and attitude stemming from a profound desire not to conform to the military environment.

9.  On the same day, the separation authority approved his discharge as recommended and directed the issuance of a General Discharge Certificate.  On 24 September 1971, he was discharged as directed.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 9 days of lost time.

10.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority.  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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority 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.

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 a 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 upgrades 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 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 applicant requests an upgrade of his general discharge to an honorable discharge.

2.  His psychiatric evaluation shows he was diagnosed with a severe personality disorder and on 24 September 1971 he was discharged under honorable conditions for unsuitability due to this character and behavior disorder with a general discharge.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  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) – which 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 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 and an Honorable Discharge Certificate, dated 24 September 1971, 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)                                         AR20130008577



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ABCMR Record of Proceedings (cont)                                         AR20130008577



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