IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140013681 


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 under honorable conditions (general) discharge to a fully honorable discharge.

2.  The applicant states he tried to get an identification card for the commissary, but his request was denied because his discharge is not honorable. 

3.  The applicant does not provide any 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's records show he was inducted into the Army of the United States on 22 May 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 36K (Field Wireman). 

3.  On 26 October 1967, he was assigned to Fort Carson, CO.  On 25 November 1967, he was advanced to the rank of private first class (PFC)/E-3.  

4.  On 4 March 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being drunk and disorderly.  His punishment consisted of a reduction to the rank of private (PV2)/E-2. 

5.  On 25 April 1973, his chain of command reported him in an absent without leave (AWOL) status.  He returned to military control at Fort Ord, CA, on 22 May 1973.  He was placed in confinement from 24 May to 6 June 1973.

6.  On 16 May 1968, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unsuitability citing the applicant's poor attitude and record of disciplinary actions.  He also cited the applicant's failure to maintain minimum standards, nonchalant response to orders, need for constant supervision, failure to maintain personal and organizational equipment, and his overall poor potential as the bases for his recommendation. 

7.  On 16 May 1968, the applicant acknowledged receipt of the separation notification.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him and as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 

8.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unsuitability with an under honorable conditions (general) discharge. The immediate commander cited the applicant's poor attitude and failure to respond to counseling. 
9.  On 29 May 1968, the applicant underwent a psychiatric evaluation at the Mental Hygiene Consultation Service, Fort Carson.  

	a.  The military psychiatrist diagnosed him with an emotionally unstable personality.  He opined that there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings.

	b.  The applicant had been seen frequently at the Mental Hygiene Clinic and had been seen by several psychiatrists.  There was a consensus that he had an unstable personality and it was frequently manifested by excessive drinking. Apparently, this excessive drinking interfered with his work frequently and his general level of function had not been satisfactory.  While it remained a command decision as to whether or not he should be separated from the Army, it was the psychiatrist's opinion that counseling and rehabilitative facilities available at Fort Carson were most unlikely to effect any significant change in his personality, his attitude or his level of function.  Moreover, there was no indication of neurotic or psychotic disease and, consequently, no mental illness as defined by the Army so that, if Command should decide that he was to be separated from the Army, it was entirely appropriate that this be done under the administrative procedures of Army Regulation 635-212.  

10.  On 4 June 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.

11.  The applicant was accordingly discharged on 11 July 1968.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability with a separation program number (SPN) of 264 (unsuitability, character and behavior disorder).  His character of service was under honorable conditions.  He completed 1 year, 1 month, and 20 days of total active service.  

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

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, character and behavior disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would 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 unsuitability under this regulation was characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was revised on 1 December 1976 following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were determined solely by the individual's military records 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 discharge upgrades 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 an 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 a 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.

15.  Army Regulation 635-200, paragraph 3-7a, states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service included one instance of NJP.  The applicant's commander cited his failure to maintain the minimum standards, nonchalant response to orders, need for constant supervision, failure to maintain personal and organizational equipment, and his overall poor potential as the bases for his recommendation. 

2.  His behavior necessitated his command referral for a psychiatric evaluation.  He was diagnosed with a character and behavior disorder.  Accordingly, his immediate commander initiated separation action against him for unsuitability (character and behavior disorder).  His administrative separation was accomplished in compliance with applicable regulations at the time.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  However, the law and regulation have since changed.  It now appears the applicant's overall service record and his diagnosed character and behavior disorder (now known as personality disorder) warrants upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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:

* showing the individual concerned was issued an honorable discharge on 11 July 1968
* issuing him an Honorable Discharge Certificate, dated 11 July 1968, in lieu of the General Discharge Certificate of the same date now held by him
* issuing 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)                                         AR20140013681



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ABCMR Record of Proceedings (cont)                                         AR20140013681



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