BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140017389 


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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was unjustly discharged based on false statements and altered medical records which he has attempted without success to obtain.  He went absent without leave (AWOL) because he feared for his life, because he was shot at five times, and was harassed by his battalion commander and Klu Klux Klan members.  He did not receive a court-martial and was never seen by a general officer before he was given his undesirable discharge. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and copies of Department of Veterans Affairs (VA) Statements in Support of Claim (VA Form 21-4138), an article distributed by the Afro-American Press, article from the Chicago Tribune, and copies of his medical records. 

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 were not available for review by the Board; however, the documents submitted by the applicant are sufficient to conduct an impartial review of his case.

3.  The applicant enlisted in the Regular Army on 30 December 1967 for a period of 3 years and training as a carpenter.  He completed his training and was transferred to Germany.

4.  His DD Form 214 shows that he had lost time during the periods 5 January – 27 February 1969, 11 March – 6 August 1969, 7 August – 12 October 1969, and 13 October to 18 December 1969, for a total of 337 days.

5.  On 3 September 1969, he underwent a psychiatric evaluation at Fort Leonard Wood, Missouri and was diagnosed as having a Passive-Aggressive Personality Disorder – Severe.  The examining psychiatrist recommended that he be eliminated under the provisions of Army Regulation 635-212.

6.  On 9 January 1970, the applicant was discharged under other than honorable conditions (Undesirable Discharge) under the provisions of Army Regulation 
635-212, for unfitness due to his individual involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 
1 month, and 9 days of active service and had 337 days of lost time due to AWOL and confinement.

7.  There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that individuals involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate. 

9.  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 was 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge of 9 January 1970 was accomplished in accordance with regulations then in effect, with no violations of any of his rights. 

2.  While the applicant’s behavior is not condoned by the Board, the undesirable 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 showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 9 January 1970.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 9 January 1970, in lieu of the undesirable discharge of the same date held by him.





      _______ _   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)                                         AR20140017389





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ABCMR Record of Proceedings (cont)                                         AR20140017389



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