IN THE CASE OF: 

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130012716 


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, in effect, upgrade of his discharge characterized as general under honorable conditions to honorable.   

2.  He states he was released from the Army based on being discharged from the hospital due to knee surgery.

3.  He provides a self-authored statement and his DD Form 214 (Report of Separation from Active Duty).

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 27 April 1977.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 
13 January 1978 for stealing $193.00 on 3 September 1977 and for being absent from his unit from 0911 hours on 11 January 1978 until 1730 hours on
12 January 1978.

4.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a 3rd Endorsement to his discharge for unsuitability, dated 28 April 1978, that shows his battalion commander approved his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsuitability.  Additionally, in a letter from the Chief, Transfer Point, dated 
19 May 1978, he was informed that the reason for his separation from active duty was "Unsuitability, Personality Disorder."

5.  The DD Form 214 he was issued at the time shows he was discharged on 
19 May 1978 under the provisions of Army Regulation 635-200, paragraph 13-4c, with an Under Honorable Conditions (General) Discharge Certificate.  His separation program designator (SPD) code is listed as "JMB."  He completed 1 year and 16 days of total active service with 7 days of time lost.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It 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, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrade of discharges based on personality disorders. 

8.  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.  His record is void of the specific facts and circumstances surrounding his discharge from the Army on 19 May 1978.  His DD Form 214 and a letter from the transfer point confirm he was discharged due to unsuitability-personality disorders.  There is no indication of procedural errors which would tend to jeopardize his rights

2.  However, based on the applicant being diagnosed as having a personality disorder, his application for discharge upgrade was reviewed under the criteria specified in the Brotzman Memorandum.  This memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.

3.  Additionally, the Nelson Memorandum 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.  

4.  The applicant's military personnel record contains no convictions by court-martial.  His record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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:

   a.  issuing the applicant an Honorable Discharge Certificate, dated 19 May 1978, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   b.  issuing the applicant 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)                                         AR20130012716





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ABCMR Record of Proceedings (cont)                                         AR20130012716



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