BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140016138 


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 a fully honorable discharge.

2.  The applicant states, in effect, that he was unjustly discharged after being sexually assaulted by a noncommissioned officer (NCO) and was labeled a homosexual.  He reported the assault and nothing was done to the NCO.  Instead, he was the one who was constantly harassed and persecuted.  He made some mistakes, but not the ones he was discharged for. 

3.  The applicant provides a three-page letter explaining his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and three news articles.

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 23 March 1962 for a period of 3 years.  He completed his basic training at Fort Ord, California and his advanced individual training as a medical corpsman and electroencephalograph technician at Fort Sam Houston, Texas before being transferred to Fort Hood, Texas for his first and only assignment.

3.  On 9 July 1963, he underwent a psychiatric examination and was diagnosed as having an inadequate personality, chronic, severe; characterized by an inadequate response to intellectual, emotional, social and physical demands.  The examining psychiatrist opined that while the applicant had attempted to the best of his abilities to honorably fulfill his military obligations, his character disorder renders him unsuitable for further military duty and recommended that he be expeditiously discharged under the provisions of Army Regulation        635-209, paragraph 3b.

4.  On 11 July 1963, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-209 for unsuitability.  The applicant waived his rights and declined the opportunity to consult with counsel.  

5.  On 18 July 1963, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

6.  Accordingly, he was discharged under honorable conditions on 14 August 1963 under the provisions of Army Regulation 635-209 for unsuitability based on a character and behavior disorder (Separation Program Number 264).  He had served 1 year, 4 months, and 12 days of active service and 10 days of lost time due to being absent without leave. 

7.  On 18 January 1965, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 25 February 1965, the ADRB determined that the applicant had been properly discharged and denied his request.

8.  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 a 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 upgrades 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 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 evidence of records shows that the applicant’s administrative separation on 14 August 1963 was accomplished in accordance with regulations then in effect.

2.  However, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently.

3.  Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___X_____  ___X_____  ___X__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  issuing him an Honorable Discharge Certificate, dated 14 August 1963, in lieu of the General Discharge Certificate of the same date now held by him and

	b.  issuing him a new DD Form 214 reflecting an honorable character of service.




      _______ _  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)                                         AR20140016138



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ABCMR Record of Proceedings (cont)                                         AR20140016138



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