IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130011180 


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 under honorable conditions (general) discharge.

2.  The applicant states it was never proven that he was unsuitable [for military service].  He was fully able to complete his 4-year enlistment and he desired to do so. 

3.  The applicant does 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 for 4 years on 4 December 1972.  He completed basic combat training at Fort Ord, CA, and advanced individual training at Fort Polk, LA. 

3.  He was issued assignment instructions to report to the 21st Adjutant General Replacement Detachment, U.S. Army Europe (Germany) on or about 25 April 1973.  He failed to report. 

4.  On 25 April 1973, his chain of command reported him in an absent without leave (AWOL) status.  He returned to military control at Fort Ord, CA, on 22 May 1973.  He was placed in confinement from 24 May to 6 June 1973.

5.  On 12 June 1973, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 25 April to 22 May 1973.  

6.  He subsequently underwent a mental status evaluation.  He was found 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.  He was diagnosed with a "Character-Behavior Disorder" and drug abuse.

7.  On 11 July 1973, the applicant's immediate commander notified him of his intent to initiate separation action against him for unsuitability under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.  The commander recommended the issuance of a General Discharge Certificate. 

8.  On 11 July 1973, 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 was 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.
9.  On 12 July 1973, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200 by reason of unsuitability.  The immediate commander indicated that discharge was warranted because of the applicant's character and behavior disorder.  The commander added that rehabilitation and/or developmental efforts would prove unlikely to produce a satisfactory Soldier.  The immediate commander recommended the issuance of a General Discharge Certificate.

11.  On 13 July 1973, 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 635-200 by reason of unsuitability and directed the issuance of a General Discharge Certificate.  The applicant was accordingly discharged on 10 August 1973.

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200 by reason of unsuitability with his service characterized as under honorable conditions.  He was assigned separation program number (SPN) 264 (character and behavior disorder). He completed 6 months and 26 days of active service during this period and he had 41 days of lost time (25 April to 21 May 1973 and 24 May to 6 June 1973). 

13.  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.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, character and behavior disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was revised on 1 December 1976 following settlement of a civil suit.  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.

16.  Army Regulation 635-200, paragraph 3-7a, states 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.

DISCUSSION AND CONCLUSIONS:

1.  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 one instance of AWOL, one instance of confinement, and one instance of NJP. 

2.  His misconduct necessitated his command referral for a psychiatric evaluation.  He was diagnosed with a character and behavior disorder as well as drug abuse.  Accordingly, his immediate commander initiated separation action against him for unsuitability (character and behavior disorder).  His 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, 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.


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 10 August 1973;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 10 August 1973, 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)                                         AR20130011180





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ABCMR Record of Proceedings (cont)                                         AR20130011180



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