IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140015302 


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, under honorable conditions discharge.

2.  The applicant states he was a foolish young man without any real guidance in his life when he entered military service.  He did not commit any significant misconduct, and he is ashamed of his character of service.

   a.  It has been more than 48 years since he was discharged and he would be at peace with his military service record if the characterization of his service was upgraded to fully honorable.

   b.  He is humbled by his daughter's honorable service in both Iraq and Afghanistan and an upgrade of his discharge would allow him to proudly stand next to her.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 257A (General Discharge Certificate). 

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 4 August 1964 for a period of 
3 years.  He was awarded military occupational specialty 94B (Cook).  He was advanced to private first class (PFC)/pay grade E-3 on 1 July 1965.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four separate occasions for:

* being absent without leave (AWOL) from 2 March to 7 March 1965
* being AWOL from 31 December 1965 to 3 January 1966
* failing to report for duty on 8 January 1966
* failing to report for duty on 1 February 1966

4.  A DA Form 20B (Insert Sheet to DA Form 20:  Enlisted Qualification Record – Record of Court-Martial Conviction) shows the applicant was convicted by summary courts-martial on three separate occasions, as follows:

* on 28 September 1965, for being AWOL from 15 September to 
21 September 1965
* on 20 September 1966, for being AWOL from 28 August to 8 September 1966
* on 21 October 1966, for being AWOL from 15 October to 19 October 1966

5.  The applicant was reduced to private/pay grade E-1 on 20 September 1966.

6.  On 21 September 1966, the company commander initiated action to recommend the applicant for separation from the U.S. Army under the provisions of (UP) Army Regulation (AR) 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6b(2), for unsuitability based on his inability to adapt to military life.  The battalion commander believed the applicant could be rehabilitated and the separation action was postponed indefinitely.

7.  On 23 September 1966, the applicant was given a mental status evaluation by the Division Psychiatrist, 101st Airborne Division.

   a.  He diagnosed the applicant with passive-aggressive personality, chronic, severe, manifested by inability to submit to authority, repeated infractions of rules, and ineffectiveness in his work.

   b.  No disqualifying mental illness or disqualifying physical defects were found sufficient to warrant disposition through medical channels.

	c.  He found the applicant was mentally responsible; able to distinguish right from wrong and to adhere to the right; he possessed sufficient mental capacity to understand the nature and seriousness of any charges against him and to conduct and cooperate in his own defense, should he be tried; and he had the mental capacity to understand and participate in board proceedings.

   d.  The psychiatrist concluded that based on the applicant's repeated refusal to adapt to Army life, no amount of effort would make him an effective Soldier.  He recommended separation of the applicant from the Army UP AR 635-212.

8.  The applicant was AWOL from 15 October to 19 October 1966.

9.  On 20 October 1966, the applicant's commander notified the applicant of his intention to recommend his separation from the U.S. Army UP AR 635-212, paragraph 6b(2), for unsuitability based on his inability to adapt to military life.  His decision was based on the applicant's failure to rehabilitate.  The commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation action and of his rights.  The applicant acknowledged the notification with his signature.

10.  On 25 October 1966, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action.  He was also provided a complete copy of the separation action.

	a.  He was advised that he may be discharged under conditions other than honorable, that he may be deprived of many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under conditions other than honorable.

	b.   The applicant waived consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived representation by counsel.

11.  The immediate and intermediate commanders recommended approval of the proposed separation of the applicant.
12.  On 1 November 1966, the separation authority noted that he had personally interviewed the applicant and determined that the administrative separation action was in the best interest of the U.S. Army and the applicant.  Accordingly, he approved the applicant's discharge UP AR 635-212 for unsuitability and directed the issuance of a General Discharge Certificate.

13.  On 10 November 1966, the applicant was discharged.  The DD Form 214 he was issued shows he was discharged UP AR 635-212, with a Separation Program Number of 264 for unsuitability, character and behavioral disorder.  He completed 2 years, 3 months, and 7 days of total active service and he had 59 days of lost time due to AWOL.

14.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  AR 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and
(6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16.  AR 635-200 governs the policies and procedures for the separation of enlisted personnel.  This regulation 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.

17.  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 contends that his general, under honorable conditions discharge should be upgraded because he did not commit any significant misconduct during the period of his military service.

2.  Records show the applicant enlisted in the RA on 4 August 1964 and his acts of indiscipline began in March 1965.  He accepted NJP for failing to report for duty (two incidents) and being AWOL (two incidents).  He was also convicted by summary courts-martial on three occasions for three incidents of AWOL.

3.  Records show the applicant was examined by a psychiatrist to ensure he was mentally fit for discharge.  He diagnosed the applicant with passive-aggressive personality, chronic, severe.  He found no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels.  He concluded that no amount of effort would make the applicant an effective Soldier and recommended separation UP AR 635-212.

4.  The applicant subsequently went AWOL and, upon his return, the commander initiated separation action.

5.  The applicant's separation UP AR 635-212 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

6.  It is noted that prior to the applicant's acts of indiscipline he had served almost 7 months and he was advanced in grade twice.

7.  The evidence of record shows the historically significant Brotzman-Nelson decisions imposed specific criteria to be applied to discharges for character and behavioral disorders.  Therefore, in view of the foregoing, the applicant's military service record should be corrected to show he was honorably discharged, effective 10 November 1966, under the extraordinary provisions of the Nelson Memorandum, dated 8 February 1978.


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:

	a.  issuing a DD Form 256A (Honorable Discharge Certificate), dated
10 November 1966, in lieu of the General Discharge Certificate of the same date now held by the applicant; and

	b.  issuing him a new DD Form 214 reflecting the above corrections issued under the provisions of (i.e., authority and reason) the Department of the Army Memorandum, dated 8 February 1978.




      _______ _   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)                                         AR20140015302



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ABCMR Record of Proceedings (cont)                                         AR20140015302



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