IN THE CASE OF:	  

		BOARD DATE:	 18 December 2014 

		DOCKET NUMBER:  AR20140008068 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states that he was sexually assaulted and called a liar for something else, and the sexual assault was covered up by the psychiatrist.

3.  The applicant provides a two-page letter explaining his application and two letters from a Department of Veterans Affairs (VA) psychologist.

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 with parental consent on 
30 January 1970 for a period of 3 years and was transferred to Fort Dix, New Jersey to undergo his basic training. 

3.  His records show he went absent without leave (AWOL) from 3 April to 
20 April 1970; however, the record is silent as to the punishment imposed for that offense.

4.  The complete facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA in Boston, Massachusetts on 26 August 1994.  However, the available records show that on 1 May 1970 the applicant’s commander advised the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He cited a psychiatric diagnosis of inadequate personality, speech disturbance (stuttering) chronic, severe that existed prior to service.  He also stated that the applicant was emotionally unstable, that he had a low maturity level, and that he was a chronic liar.

5.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on    29 June 1970 and directed that he be furnished a General Discharge Certificate.

7.  On 10 July 1970, he was discharged under honorable conditions under the provisions of Army Regulation 635-212, paragraph 6(b), for unsuitability due to a character and behavior disorder.  He had served 4 months and 23 days of active service and had 19 days of lost time due to being AWOL.

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

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability or unfitness.  It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability based on a diagnosed character and behavior disorder.  

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations) 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 a 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, better known as the "Brotzman Memorandum," was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality 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.  Convictions by general court-martial or by more than one special court-martial were 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 that the applicant's administrative separation on 10 July 1970 was accomplished in accordance with regulations then in effect.

2.  While the applicant's behavior is not condoned by the Board, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may exist permanently.

3.  Consequently, it appears that the above-mentioned memoranda should be applied to this case and that his discharge should be upgraded to honorable.

4.  In view of the foregoing, the applicant's records 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 showing that he was separated from the service with an Honorable Discharge Certificate on 10 July 1970; issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 10 July 1970, in lieu of the general discharge of the same date currently held by him; and issuing to 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)                                         AR20140008068





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ABCMR Record of Proceedings (cont)                                         AR20140008068



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