IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007340 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

	a.  When he reenlisted in the Regular Army (RA) for 6 additional years, his record was perfect.  Then he was assigned to Fort Monmouth, NJ, while attending school.  On 1 July 1961, he had a motorcycle accident while on a weekend pass.  He hit a car that pulled into his lane, flipped over the car, and went head first into a brick wall.  He was taken to a local hospital and then transferred to the Naval Hospital, Philadelphia, PA.  He was released after 11 days and returned to duty at Fort Monmouth.

	b.  He was still having problems with his memory but thought nothing of it.  One day he wandered off base without permission and returned a couple of days later.  He was court-martialed, reduced from the rank of specialist four (SP4)/E-4 to private (PVT)/E-1, and put in the stockade.  When he was released from the stockade, he was transferred to Fort Hood, TX.

	c.  While at Fort Hood, he was having a lot of problems, such as forgetting things and having severe pain in his head.  He received treatment but it didn't do him any good and he asked his doctor to be released from the Army.  He doesn't know what happened but he was issued a general discharge under honorable conditions.  He would like it upgraded to honorable based on his prior record and his medical condition due to the accident.
3.  The applicant provides two DD Forms 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 RA on 13 August 1958.  On 19 May 1959, he was assigned to the 3rd Squadron, 4th Cavalry, HI.  He was promoted to SP4 on 4 November 1960.

3.  On 17 November 1960, he was honorably discharged for the purpose of immediate reenlistment.  On 18 November 1960, he reenlisted in the RA.

4.  On 10 June 1961, he was assigned to the U.S. Army Signal Communications School Regiment, Fort Monmouth, NJ.

5.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 July 1961, wherein it stated he had been on authorized pass from 30 June to 3 July 1961.  On 1 July 1961, he was driving a motorcycle in Philadelphia when the gears jammed and he crashed into a wall.  He was admitted to the U.S. Naval Hospital on 1 July 1961 and treated for concussion of the brain and a sprain of the left wrist.  On 11 July 1961, he was released from the hospital and returned to the unit.  He went on sick call at the Patterson Army Hospital, Fort Monmouth, and returned to duty.  On 26 September 1961, his injury was found to have been incurred in the line of duty.

6.  His record contains a hospital report, dated 11 July 1961, wherein, in part, it stated:

	a.  He was treated for concussion of the brain on 1 July 1961.  He was not rendered unconscious, seen at a local hospital, and sent home.  He later became sick to his stomach, vomited, had a headache, and a painful left wrist.  Because of increasing drowsiness, he was brought to the Naval Hospital and admitted.  

	b.  His physical examination was within normal limits except for his left wrist which was not broken.  Neurologically, he was lethargic but responded well to painful stimuli.  His laboratory work was normal and X-rays of the skull, wrist, and chest were normal.  Treatment consisted of observation of vital signs and repeated neurologic examination.  Over the ensuing days, he became asymptomatic with only residual left wrist pain.  On 11 July 1961, he was asymptomatic and ready to be discharged and returned to duty.

7.  On 21 August 1961, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 12 to 14 August 1961.  The punishment imposed included reduction to the rank of private first class (PFC)/E-3.

8.  On 28 August 1961, he was convicted by a summary court-martial of one specification of being AWOL from 23 to 24 August 1961.  The punishment imposed included reduction to PVT/E-1.

9.  On 28 January 1962, he was assigned to the 1st Medium Tank Battalion (MTB), 67th Armor Regiment, Fort Hood, TX.  He subsequently went on sick call on 5, 8, 23, and 28 February 1962.  

10.  On 26 February 1962, he underwent a mental status evaluation.  In a report, dated 12 March 1962, the examining psychiatrist stated:

	a.  The applicant was referred for a mental evaluation at the request of his unit dispensary.  He had complained of continuous headaches which become severe whenever he was under any pressure from authorities.  He had been seen on several occasions by mental hygiene personnel at Fort Monmouth, and was seriously considered for separation under the provisions of Army Regulation
635-209 (Personnel Separations - Discharge - Unsuitability).  He had been thoroughly evaluated to determine any physical cause for his headaches and all results were negative (emphasis added).  His adjustment to the military was generally unsatisfactory and his usual response to pressure was to retreat from the stress by refusing to work at his assigned tasks or going AWOL.

	b.  He was cooperative, his affect was appropriate, and he was well oriented. There was no evidence of a chronic thinking disorder and he would no doubt continue to be a problem if retained on active duty.  The examining psychiatrist found the applicant had no disqualifying mental or physical defects warranting a discharge through medical channels.
   c.  He was diagnosed with chronic, severe, passive-aggressive reaction manifested by repeated AWOL, retreat from stress, somatic complaints without a physical basis, and poor attitude toward authorities. His condition was determined not to be amenable to hospitalization, treatment, disciplinary action, training, transfer, or a change in duty.  The recommendation was the applicant be separated under the provisions of Army Regulation 635-209.

11.  The applicant was subsequently notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-209, by reason of unsuitability.  He acknowledged receipt of the notification, that he was advised of the basis for the discharge action, and that he was advised of the procedures and rights available to him.  He waived consideration of his case by a board of officers, elected not to submit a statement in his own behalf, and waived representation by military counsel.

12.  On 17 March 1962, his immediate commander initiated discharge action against him under the provisions of Army Regulation 635-209 for unsuitability with a recommendation that he be given a general discharge.  The commander stated the applicant displayed marked irresponsibility and would undoubtedly become a serious disciplinary problem.  He was assigned to the unit on 28 January 1962 and since then he received unsatisfactory conduct and efficiency ratings.   

13.  On 20 March 1962, the separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  On 6 April 1962, he was discharged accordingly.

14.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209, by reason of unsuitability - character or behavior disorder (separation program number (SPN) 264) with an under honorable conditions characterization of service.  During this period of service, he completed 1 year, 4 months, and 16 days of net active service with 3 days of lost time due to being AWOL.

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

16.  Army Regulation 635-209, in effect at the time, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.
17.  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.

18.  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" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his conviction by two summary courts-martial for going AWOL.  In addition, his commander stated he repeatedly displayed marked irresponsibility, had a poor attitude toward authority, and had unsatisfactory conduct and efficiency ratings.  Accordingly, his immediate commander initiated discharge action against him for unsuitability and he was discharged on 6 April 1962 with a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  Based on his overall record, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Nevertheless, the Brotzman Memorandum mandated that the presence of a personality disorder (formerly known as character and behavior 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.  The applicant in this case was convicted by only two summary courts-martial.  Therefore, his discharge should be upgraded to fully honorable.

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:

* issuing the applicant a new DD Form 214 reflecting his character of service as honorable
* issuing the applicant an Honorable Discharge Certificate, dated 6 April 1962, 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)                                         AR20140007340



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ABCMR Record of Proceedings (cont)                                         AR20140007340



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