BOARD DATE:  	  2 April 2015

		DOCKET NUMBER:  AR20140014632 


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 (GD) to an honorable discharge (HD).

2.  The applicant states: 

   a.  At the time of his discharge, he was told his GD would change into a HD in 6 months.  He did not know he had to submit a request to do so until now.
   
   b.  He has been a good tax-paying person for years.
   
3.  The applicant did not provide any supporting documentation.

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.  On 29 September 1970, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 63C (General Vehicle Repairman).

3.  On 2 August 1972, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), the applicant received nonjudicial punishment (NJP) for failure to obey a lawful regulation.  He received another company-level NJP, and he received NJP for wrongful possession of an illegally controlled substance (marijuana).  His DA Form 20 (Enlisted Qualification Record) also shows he was AWOL for 2 days.

4.  On 30 May 1973, his company commander advised him that he was being considered for separation under the provisions of Army Regulation 635-212 (Personnel Separation - Unfitness or Unsuitability.  His company commander advised him of his rights.

5.  On 3 June 1973, the applicant waived his right to consult with counsel, consideration of his case by a board of officers, a personal appearance before a board, and to submit statements on his behalf. 

6.  On 8 June 1973, his company commander recommended that the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged prior to the expiration of his term of service.  His company commander indicated he was recommending discharge because of character and behavior disorder.

 7.  On 8 June 1973, the applicant's commander at Headquarters, Rocky Mountain Arsenal, Denver, CO determined that recommendation for separation due to unfitness was not considered appropriate.

8.  On 8 June 1973, the applicant received a Report of Mental Status evaluation, but he was not diagnosed with any mental illnesses, disorders, and he was found fit for duty.

9.  On 8 June 1973, the separation authority approved the command's request for the applicant's separation under the provisions of Army Regulation 635-212 and directed the issuance of a GD.  Therefore, on 15 June 1973, the applicant was discharged with a GD.

10.  The applicant's DD Form 214, item 11c (Reason and Authority), shows he was discharged under the provisions of Army Regulations 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, and not Army Regulation 635-212.

11.  Effective 15 January 1973, the provisions of Army Regulation 635-212 were incorporated into Army Regulation 635-200 as chapter 13.

12.  Army Regulation 635-212 (Personnel Separation - Unfitness or Unsuitability), 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.
		
13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be 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.

14.  Army Regulation 635-200, 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.  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 was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 
15 June 1973 was accomplished in accordance with regulations then in effect.  

2.  However, 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 for 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 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 issuing him a new DD Form 214 and an Honorable Discharge Certificate, dated 15 June 1973, in lieu of the DD Form 214 and General Discharge Certificate 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)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140014632



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