BOARD DATE:  10 February 2015

		DOCKET NUMBER:  AR20140011354 


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 honorable and the separation program number (SPN) be removed.

2.  The applicant states he made a mistake while in the Army.  He was young and didn't know better.

3.  The applicant provides a copy of his DD Form 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 Regular Army on 14 July 1971.  He held military occupational specialty 94B (Cook).  
3.  He accepted nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 18 March 1972, for failing to go to his appointed place of duty and failing to obey a lawful order
* 25 June 1972, for failing to go to his appointed place of duty
* 23 January 1973, for being absent without leave (AWOL) from 15 January to 22 January 1973

4.  On 12 June 1973, he was convicted by a special court-martial of one specification of the wrongful appropriation of a privately-owned vehicle, the property of another Soldier, and two specifications of being AWOL.

5.  On 15 June 1973, the unit commander notified the applicant of his intention to separate him from the service for unsuitability under the provisions of Army Regulation 635-200, chapter 13. 

6.  The applicant consulted with counsel and elected to waive counsel.  He also indicated he did not desire to submit a statement.

7.  The applicant's unit commander, at the U.S. Army Retraining Brigade, recommended he be eliminated from the service as unsuitable due to a diagnosed character and behavior disorder.  The commander stated that he had been convicted by a special court-martial and had accepted NJP on two occasions.  He had been sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  However, his inability to adapt to the military service and his character and behavior disorders rendered him unsuitable for further service.  He had received four adverse observation reports and extensive counseling by members of the leadership teams, the unit social worker, and members of the professional staff agencies.

8.  On 15 June 1973, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 
21 June 1973.  He had completed 1 year, 8 months, and 16 days of creditable active duty service.

10.  His DD Form 214 shows he was discharged under the authority of Army Regulation 635-200 (Enlisted Personnel Separations) with an SPN of 264.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 of this regulation, as in effect at the time, provided for separation due to inaptitude and apathy.  The regulation required that separation action be taken when in the commander’s judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

	b.  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.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, states in paragraph 1-2e that the SPN is a number used in statistical accounting to represent the specific authority and reason for separation.  SPNs are an integral part of the authority for separation shown on the DD Form 214.  A listing of SPNs and Authority Governing Regulations is provided in Army Regulation 635-5, Appendix A.  The SPN "264" is listed for enlisted personnel separated for unsuitability, character and behavior disorders.

14.  Army Regulation 635-200 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.
	
15.  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 applicant requests upgrade of his general discharge and removal of the SPN from his DD Form 214.  The applicant states he made a mistake while in the Army.  He was young and didn't know better.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The governing regulation at the time required he receive the corresponding SPN of "264."  Therefore, there is no basis for granting this portion of the applicant's request.

3.  However, based on the applicant's discharge for unsuitability, character and behavior disorders, the Brotzman/Nelson Memoranda require the applicant's discharge be upgraded to honorable.  Therefore, it would be appropriate at this time to upgrade his discharge from a general to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 and

	b.  issuing him a new DD Form 214 reflecting his character of service as "Honorable."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the SPN from his DD Form 214.




      _________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)                                         AR20130019134



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ABCMR Record of Proceedings (cont)                                         AR20140011354



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