IN THE CASE OF:    

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140001148 


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 to an honorable discharge.

2.  He states he never had representation prior to his discharge for his circumstances or was allowed to defend himself in any form.  He was discharged by one person who believed he was too immature to carry on his duties; however, he was never asked or sent to see any doctors for an evaluation.  He has been seeing doctors at the Department of Veterans Affairs (VA) for many years and was finally told he has Post-Traumatic Stress Disorder (PTSD).  

3.  The applicant provides 32 pages of Progress Notes from the VA printed on 
22 May 2012.

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.  He enlisted in the Regular Army on 20 October 1972 and served in military occupational specialty (MOS) 64C (Motor Transport Operator).  

3.  The applicant's military medical records are not available for the Board's review.  It is believed they are on permanent loan with the VA.

4.  A DA Form 2496 (Disposition Form), subject:  Record of Counseling, 
dated 6 February 1974, indicates he had been counseled in accordance with chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) between 25 September 1973 and 23 January 1974 for offenses such as his complete apathy towards learning the job of tanker; failing to pick up his "gear"  although he had been given a 3-day pass to do so; having a poor attitude and appearance; unsatisfactory job performance; back-talking a noncommissioned officer; and owing his mother over $240, which had not been repaid.  There is no documentation that shows he experienced non-combat related trauma while serving on active duty. 

5.  A copy of his mental status evaluation is not in the available record; however, the counseling he received on 1 February 1974 shows his company commander noted that the psychiatrist had strongly recommended the applicant's discharge from the Army.

6.  On 6 February 1974, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability.  

     a.  The commander strongly recommended the discharge due to the immature personality noted in the applicant's mental status evaluation.  He had been unable to adapt in any way to military discipline.  His financial and automobile related problems have seriously hurt his duty performance.  

     b.  He had been transferred once for rehabilitative purposes and a duty MOS change was involved.  He received extensive counseling by the chain of command and several letters were exchanged with his mother who was very concerned but had no solution herself.

     c.  He had no significant psychiatric, alcoholic, drug, or health problems.  His conduct and efficiency were noted to be unsatisfactory.  

     d.  Since the applicant's arrival in the company, he had shown no motivation to adapt to his new job.  He was considered, by his peers and superiors, as an outcast.  He was in continual trouble with civilian authorities due to his personal financial and private owned vehicle problems.  

     e.  It was noted that he had a previous record of conviction, record of nonjudicial punishment, and a record of counseling.

7.  The applicant was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of chapter 13, Army Regulation 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  

     a.  the applicant waived consideration of his case by a board of officers and to appear in person before a board of officers;

     b.  he elected not to submit any statements in his own behalf; 

     c.  he also waived to be represented by counsel;  

     d.  the applicant understood that he may expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions was issued to him;  

     e.  he understood he could withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge, and request his case be reviewed by a board of officers; and  

     f.  the applicant's counsel indicated the applicant had been advised of the aforementioned and that he appeared of sound mind, and he personally and knowingly made the choices indicated in the foregoing statement.

8.  His battalion commander recommended approval of the recommended separation action and indicated the applicant was a prime example of an immature young man who was not ready to accept responsibility for his actions.  In some respects the applicant thought the elimination procedure was a big joke, while at the same time he wanted an honorable discharge but was unwilling to work for it. 

9.  On 14 February 1974, the approval authority directed the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability and be furnished a DD Form 257A (General Discharge Certificate).
10.  Accordingly, on 6 March 1974, the applicant was discharged by reason of a personality disorder and issued a General Discharge Certificate.  His DD Form 214 shows he completed 1 year, 4 months, and 3 days of total active service with 14 days of lost time.

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

12.  He provided 32 pages of VA Progress Notes.  

       a.  It shows he was receiving treatment for PTSD/Major Depressive Disorder.  It was noted that the applicant continued to be depressed and hopeless about the future.  He continued to have nightmares regularly.  He had hallucinations at times, but the last occasion was 4 to 5 days from the date of the examination.  He continued appointments with a psychiatrist and other mental health providers and took prescribed medications.  

       b.  Page 24 of this document shows he told the provider his enlistment contract was broken because he was supposed to serve in MOS 64C but instead he worked in a tank.  He experienced non-combat related trauma.  He reported that he was beaten by his drill instructor in basic combat training and while stationed at Fort Riley, KS, he was beaten by his two roommates but he was the one charged with destroying military property.  "They buried his car in the mud."

13.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13, then in effect, prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.

	b.  This regulation 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.

14.  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.  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" that would justify a less than fully honorable discharge.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge to an honorable discharge has been carefully considered.

2.  The evidence shows his discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The evidence also shows he was diagnosed with a personality disorder.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for discharge upgrades based on personality disorders.  Therefore, his application was reviewed using the revised criteria of Army Regulation 635-200.

4.  The Nelson Memorandum 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" that a fully honorable discharge should not be granted.
5.  Based on the fact that his record shows only minor instances of misconduct, and in accordance with the revised provisions of Army Regulation 635-200, it would be appropriate at this time to upgrade the applicant's discharge to fully honorable based on the diagnosis of a personality disorder and the absence of substantial instances of indiscipline.

6.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 him a new DD Form 214 reflecting his character of service as "honorable"; and

	b.  issuing him an Honorable Discharge Certificate, dated 6 March 1974, in lieu of the General Discharge Certificate of the same date now held by him.



      __________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)                                         AR20140001148





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ABCMR Record of Proceedings (cont)                                         AR20140001148



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