IN THE CASE OF:  	  

		BOARD DATE:  3 December 2014 	  

		DOCKET NUMBER:  AR20140003088 


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.  The applicant states he was a good Soldier with no marks on his record, but too young to adapt to military life.

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 26 September 1963 at the approximate age of 17 years and 6 months.

3.  His record contains three DA Forms 2627 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) which show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for the following offenses on the dates shown:

* 7 January 1964, for failing to go at the prescribed time to his appointed place of duty
* 27 January 1964, for wrongfully disobeying a direct order to be prepared for inspection
* 13 March 1964, for wrongfully disobeying a lawful order to shave

4.  A mental status evaluation, dated 21 April 1964, found that the applicant:

* was mentally responsible, both to distinguish right from wrong and to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* had a behavior disorder classified as Schizoid personality, chronic; severe, not in the line of duty and had existed prior to service.

5.  The medical officer stated that it seemed quite improbable that the applicant would ever be of significant use to the Army and he recommended the prompt separation of the applicant in accordance with Army Regulation 635-209 (Personnel Separations – Discharge– Unsuitability).

6.  On 12 June 1964, his company commander notified him of the proposed action to separate him under the provisions of Army Regulation 635-209 by reason of unsuitability and that because an undesirable discharge could be issued he was entitled to a hearing before a Board of Officers or he could waive this privilege and submit written statements in his own behalf, or he could waive both of the privileges.  Further, if he received an undesirable discharge, that as a result of such discharge he may be deprived of many or all right as a veteran under both Federal and State Laws and that he may expect to encounter substantial prejudice in civilian life.

7.  On the same day, he acknowledged notification of the separation action and waived his right to a hearing and elected not to submit statements in his own behalf.

8.  On 16 June 1964, the separation authority approved the recommendation under the provisions of Army Regulation 635-209 by reason of unsuitability with issuance of a General Discharge Certificate.

9.  Accordingly, he was discharged on 22 June 1964 under the provisions of Army Regulation 635-209.  He completed 8 months and 27 days of total active service and was issued a General Discharge Certificate.

10.  Army Regulation 635-209, then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined, through proper board action, that an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier he will be discharged.  This regulation provided that a Soldier was to be discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such personality patterns when appropriate on the basis of adjustment, behavior or performance in service.  

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  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.  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 the upgrade of discharges based on personality disorders.

12.  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.  A 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 available evidence shows that his discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  However, 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 (then known as character and behavior 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.  His military personnel record contains minor disciplinary actions.  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 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 applicant was discharged with honorable service on 
22 June 1964; 

	b.  issuing him an Honorable Discharge Certificate, dated 22 June 1964; and



	c.  issuing him a new DD Form 214 reflecting the above correction.



      ___________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)                                         AR20140003088





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ABCMR Record of Proceedings (cont)                                         AR20140003088



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