BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008581 


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 upgrade of his general discharge under honorable conditions to honorable.

2.  The applicant states he did nothing wrong to deserve a general discharge.  He further states he never possessed illegal drugs and he was never charged or convicted of any offenses.

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 enlisted in the Regular Army on 22 June 1970 for a period of two years.  He completed training and was awarded military occupational specialty 91A (Medical Corpsman).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 October 1970, for failing to go at the time prescribed to his appointed place of duty.

4.  On 2 November 1970, he underwent a psychiatric evaluation as part of his request to be discharged as a conscientious objector.  Upon examination the psychiatrist stated that there was no psychiatric disorder apparent at the time.  The applicant was able to distinguish right from wrong, and had the mental capacity to understand and participate in any action taken in his case.  He further opined that there was no mental defect or derangement present which would warrant consideration by a physical examination board or other disposition through medical channels.

5.  The applicant received NJP under the provisions of Article 15 of the UCMJ on 1 December 1970, for wrongfully altering a DD Form 689 (Individual Sick Slip).

6.  On 20 January 1971, the applicant was notified his application for separation as a conscientious objector was disapproved.

7.  On 17 February 1971, he underwent a psychiatric evaluation and was diagnosed as being an "emotionally unstable personality, chronic, severe; manifested by a long history of inadequate adjustment, forty visits to his high school principal, expelled from high school in his senior year, no successful employment in civilian life, arrested as civilian for petty larceny, concealing stolen property, minor possession, multiple drug abuse, poor impulse control, emotional liability, maximum symptoms with minimal stress."

8.  On 3 March 1971, court-martial charges were preferred against the applicant for being absent from his unit for the period 23 January through 16 February 1971.

9.  Evidence shows the applicant was found guilty at a summary court-martial of one specification of violating Article 86 of the UCMJ by being absent from his unit without authority for the period 23 January through 16 February 1971.  On        12 March 1971, the following sentence was adjudged:  to forfeit $80.00 pay for one month and to perform hard labor without confinement for a period of 32 days.    

10.  On 8 March 1971, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  He was advised of his rights.

11.  On 8 March 1971, the applicant acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and didn't submit statements in his own behalf.

12.  Evidence appears to show the separation authority waived counseling and rehabilitation requirements and directed discharge under the provisions of Army Regulation 635-212 with issuance of a General Discharge Certificate.

13.  On 30 March 1971, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under provisions of Army Regulation 635-212 with a separation program number of 264 for unsuitability, character and behavioral disorders, with issuance of a General Discharge Certificate.  He completed 8 months and 15 days of total active service during this period with 24 days of time lost.

14.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.

16.  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.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  His psychiatric evaluation shows he was diagnosed with a severe, chronic emotionally unstable personality and he was discharged for unsuitability due to this character and behavior disorder with a general discharge.  His administrative separation on 30 March 1971 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) – 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:

________  ________  ________  GRANT FULL RELIEF 

___X__  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 30 March 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)                                         AR20130008581





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ABCMR Record of Proceedings (cont)                                         AR20130008581



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