IN THE CASE OF:	  

		BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20140018275 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was very young when he enlisted with the plan to make a career of the service.  Something happened to him when he went to war and since he got back home in 1966 he started doing things that were not the way he had been trained.  He believes his 50 years of suffering with post-traumatic stress disorder (PTSD) and his work with other veterans with the same problems warrants an upgrade.

3.  The applicant provides no additional 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.  The applicant served on active duty from 31 March 1960 through 9 May 1962 with an immediate reenlistment on 10 May 1962.  His military occupational specialty is shown as 11B (Light Weapons Infantryman).

3.  He served in Korea from 24 February 1961 through 30 May 1962 and in Vietnam from 8 July 1965 through 16 June 1966.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on –

* 19 April 1963, for failing to go at the time prescribed to his appointed place of duty
* 24 May 1963, for being absent without leave (AWOL) from 2 May 1963 to 5 May 1963
* 22 June 1963, for consuming alcohol in the enlisted barracks
* 25 November 1966, for failing to go at the time prescribed to his appointed place of duty
* 3 January 1967, for failing to go at the time prescribed to his appointed place of duty
* 21 March 1967, for being AWOL from 21 March 1967 through 23 March 1967
* 27 December 1967, for failing to go at the time prescribed to his appointed place of duty

5.  A special court-martial found the applicant guilty of AWOL for three periods: 5 June 1967 to 26 June 1967, 30 June 1967 to 2 July 1967, and 5 July 1967 to 10 July 1967.

6.  The applicant's unit commander initiated separation proceedings on 7 August 1967 under Army Regulation 635-212.  The commander noted the applicant had been counseled repeatedly about failing to pay his just debts, being late for work call, leaving his place of duty early, and a lack of interest in his job.  While under his command the applicant had received a special court-martial conviction and an Article 15. 

7.  On 7 August 1967, the applicant acknowledged the separation action and waived his administrative rights.

8.  The separation authority determined that separation for unsuitability but not unfitness was appropriate.  He approved the separation action and directed the applicant receive a GD.

9.  The applicant's conduct and efficiency ratings are shown as "excellent" for the periods 31 March 1960 through 12 November 1966.  His next reporting period was marked as "good" followed by an "unsatisfactory" period, an "excellent" period, and a final rating of "unsatisfactory."  The applicant was promoted to sergeant (E-5) on 22 October 1966 with subsequent reduction to private one 
(E-1) as a result of disciplinary actions.

10.  The applicant was discharged with a GD on 22 September 1967 under the provisions of Army Regulation 635-212, paragraph 6-B with the separation program designator of 264 (unsuitability – character and behavior disorder).  He had 5 years, 2 months, and 2 days of creditable service; 69 days of excess leave; and 70 days of lost time during his second enlistment.  His awards include the Army Commendation Medal with "V" Device, Good Conduct Medal, and the Combat Infantryman Badge.

11.  The Army Discharge Review Board denied the applicant's requests for an upgrade on 30 April 1974 and again on 14 October 1977.

12.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs (VA) and are not available for review.

13.  The VA granted the applicant service connected disability benefits for PTSD in 1992 with subsequent award of a disability evaluation for a shrapnel wound to his right side in 2008.  He is currently in receipt of a 100 percent evaluation for his PTSD.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for discharge due to:

   a.  unfitness for members 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.
   
   b.  unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  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.
   
15.  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.

16.  On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.  

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The record shows he was ultimately separated based on a character behavior disorder.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

2.  Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case.  His having been convicted by only one special court-martial indicates the applicant meets those criteria; therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of the Brotzman/Nelson memoranda.

3.  In view of the above, the applicant’s discharge should be upgraded to honorable and a new DD Form 214 should be issued.

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.  voiding the applicant's general discharge and DD Form 214 issued for the period ending 22 September 1967; and 

   b.  issuing the applicant an honorable discharge certificate and a new DD Form 214 for the period ending 22 September 1967 reflecting an honorable characterization 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)                                         AR20140018275



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ABCMR Record of Proceedings (cont)                                         AR20140018275



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