BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010757 


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 an upgrade of his general discharge to honorable.

2.  The applicant states:

* he was informed his discharge would be upgraded after 6 months
* three of his service medical records have been tampered with

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Standard Forms 89 (Report of Medical History), dated December 1967 and December 1968
* Standard Form 507 (Clinical Record), dated 7 February 1969

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 22 December 1967 for 3 years.   He completed his training and was awarded military occupational specialty 72C (switchboard operator).

3.  Between January 1968 and November 1968, nonjudicial punishment (NJP) was imposed against him on five occasions for:

* disorderly behavior in quarters
* failing to repair
* being absent without leave (AWOL) from 6 to 7 August 1968, disobeying a lawful order, and failing to repair
* using disrespectful language toward a staff sergeant
* disobeying a lawful order
 
4.  On 26 November 1968, he underwent a psychiatric evaluation and was diagnosed by a psychiatrist with an immature personality (character behavior disorder).

5.  On 27 November 1968, he was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.

6.  He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

7.  On 1 December 1968, the unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unsuitability.  The commander cited the applicant's habits and traits of character disorder and irregular behavior patterns.

8.  On 11 December 1968, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  He was discharged for unsuitability on 26 January 1969 under the provisions of Army Regulation 635-212 due to character and behavior disorder with a general discharge and the issuance of a DD Form 257A (General Discharge Certificate).  He completed 1 year, 1 month, and 5 days of total active service.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and 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 and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), which superseded Army Regulation 635-212, 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.

13.  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.

14.  Army Regulation 635-200, 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.

15.  The U.S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was informed his discharge would be upgraded after 6 months; however, a discharge upgrade is not automatic.  Each case is decided on its own merits.

2.  The evidence of record shows the applicant was diagnosed with a character and behavior disorder by a psychiatrist in November 1968 and the separation authority approved his discharge for unsuitability due to a character and behavior disorder with a general discharge on 26 January 1969.

3.  Subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge by reason of unsuitability, character and behavior disorder (now known as personality disorder) which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards.

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.  voiding his current DD Form 214 with an under honorable conditions character of service;

	b.  issuing him a new DD Form 214 with an honorable character of service; and

	c.  issuing him an Honorable Discharge Certificate, dated 26 January 1969, in lieu of the General Discharge Certificate of the same date he now holds.



      ___________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)                                         AR20140010757



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ABCMR Record of Proceedings (cont)                                         AR20140010757



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