IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130012346


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, from an under honorable conditions (general) discharge to an honorable discharge.  

2.  The applicant states he didn't understand the discharge he received [at the time he was separated].

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 16 June 1969.  He entered active duty at Fort Bragg, NC, where he completed basic training.  
3.  On or about 4 September 1969, following his completion of basic training, he was reassigned to Fort Gordon, GA, for the purpose of advanced individual training (AIT) in military occupational specialty (MOS) 72C (Telecommunications Switchboard Operator).  It does not appear that he completed the AIT course of instruction in MOS 72C.

4.  He was reported as absent without leave (AWOL) from on or about               13 October 1969 through on or about 14 October 1969.  

5.  On or about 19 November 1969, he was reassigned from Fort Gordon, GA, to Fort Ord, CA, for the purpose of AIT in MOS 94B (Food Service Specialist).  It does not appear that he completed the AIT course of instruction in MOS 94B.

6.  He was reported as AWOL from on or about 29 November 1969 through on or about 6 December 1969, and from on or about 17 December 1969 through on or about 15 January 1970.  He was confined in the hands of civil authorities from 
15 January 1970 through 20 January 1970, and he was in military confinement at Fort George G. Meade, MD, from 21 January 1970 through 2 February 1970.

7.  On 3 February 1970, before a special court-martial at Fort George G. Meade, MD, he was found guilty of a single specification of the Charge of absenting himself from his unit, without authority, from on or about 17 December 1969 through on or about 15 January 1970.

8.  He was reassigned from Fort George G. Meade, MD to Fort Knox, KY, for the purpose of AIT in MOS 11D (Armored Reconnaissance Specialist); however, he did not complete the AIT course of instruction in MOS 11D.

9.  He was reported as AWOL from on or about 12 February 1970 through on or about 25 February 1970.

10.  He was notified of his immediate commander's intent to initiate separation action against him, in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  His immediate commander advised him of his right to present his case to a board of officers, to submit statements on his behalf, to be represented by counsel, and to waive any of his rights in writing.  

11.  On 30 March 1970, he acknowledged receipt of the separation action and 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 of the procedures/rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a less than honorable discharge was issued to him, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He elected to waive consideration of his case before a board of officers, a personal appearance before a board of officers, and representation by counsel.  He did not submit statements on his own behalf.

12.  On 31 March 1970, his commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unsuitability, and recommended he be issued a General Discharge Certificate.

13.  The applicant's battalion and brigade commanders recommended approval of his request for discharge with a General Discharge Certificate on 31 March and 2 April 1970, respectively.  

14.  On 7 April 1970, the separation authority approved his request for discharge under the provisions of Army Regulation 635-212, by reason of unsuitability, and directed that he be furnished a General Discharge Certificate.  

15.  On 16 April 1970, he was discharged from the Army under the provisions of Army Regulation 635-212, by reason of unsuitability.  He completed 8 months and 3 days of creditable active service during this period of service and he had 60 days of lost time.  The DD Form 214 he was issued shows he was assigned Separation Program Number (SPN) 264 (Unsuitability, character and behavioral disorders) and he was issued a General Discharge Certificate.
 
16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their 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. 

18.  Army Regulation 635-212, then in effect, provided 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

19.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates.    

   a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

   b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

20.  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 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, was promulgated.  This memorandum, known as the Brotzman Memorandum, 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, 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 was "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 (emphasis added)) was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends 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 conviction by special court-martial.  

3.  Accordingly, his immediate commander initiated separation action against him for unsuitability, based on a character and behavior disorder.  The applicant’s administrative separation was accomplished in compliance with applicable regulations at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  It now appears his overall service record and 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 16 April 1970;
   b. issuing him an Honorable Discharge Certificate from the Army of the United States, dated 16 April 1970, 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130012346



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