IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140018855 


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).  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his correct social security number (SSN).

2.  The applicant states:

* He served in the Army during the Vietnam era and he was assaulted
* He was hospitalized in Germany for hepatitis
* Post-traumatic behavior was the cause of his incarceration
* He was discharged with a personality disorder and he received a GD
* Due to the memorandum by the Secretary of Defense, he is allowed to apply for an upgrade
* There was no such thing as post-traumatic stress disorder (PTSD) in 1967
* PTSD is part of his diagnosis at Dorn Department of Veterans Affairs (VA) Medical Center
* He has a 30 percent service-connected disability rating for depression

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 22 October 2014
* DD Form 214, dated 17 November 1967
* Special Orders Number 7, dated 11 January 1967
* Special Orders Number 320, dated 16 November 1967
* DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction)
* DA Form 20 (Enlisted Qualification Record)
* Standard Form 600 (Chronological Record of Medical Care), dated 12 February 1967
* Notice of Name Change
* social security card
* AE Form 3087 (Report of Psychiatric Evaluation), dated 10 July 1967
* VISTA Electronic Medical Documentation Progress Notes, dated 20 August 2014
* VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD)
* VA Form 21-4138 (Statement in Support of Claim), dated 7 January 2013

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 22 December 1966, the applicant completed a DD Form 398 (Statement of Personal History).  This document lists his SSN as XXX-4X-XXXX.

3.  The applicant enlisted in the Regular Army on 11 January 1967, and he completed training as a light weapons infantryman.  A review of his records show his SSN listed as XXX-4X-XXXX on every document contained therein requiring its use.  

4.  The applicant provides a Standard Form 600 which shows that he went to emergency sick call on 12 February 1967 for a bruised left eye as a result of an assault.

5.  He arrived in Germany on 9 June 1967.

6.  On 3 July 1967, the applicant underwent a pretrial psychiatric evaluation for alleged charges of disobeying a lawful order and for assaulting two noncommissioned officers.  He was diagnosed as having a severe character and behavior disorder of long standing duration.  The psychiatrist stated:

* It was most unlikely that he could be successfully rehabilitated into the Army
* He was not insane and he possessed sufficient mental capacity to know the difference between right and wrong
* He should be able to adhere to the right and refrain from the wrong
* He was considered mentally responsible for his acts
* His retention in the Army would only result in further acts of delinquency and disciplinary difficulty

7.  The psychiatrist recommended that the charges against the applicant be adjudicated.  He stated that there were no psychiatric contraindications to any administrative action deemed appropriate by his command to include separation under the provisions of Army Regulation 635-212 (Enlisted Personnel Separations – Unfitness and Unsuitability).

8.  On 3 July 1967, the applicant was convicted by a special court-martial of striking his superior noncommissioned officer in the chest with his fist and for failure to obey a lawful order.  He was punished to confinement at hard labor for 6 months and a reduction to pay grade E-1.

9.  On 26 July 1967, the applicant was notified that he was being recommended for discharge for unsuitability.  He acknowledged receipt of the notification on 5 September 1967.  After consulting with counsel he waived his rights and he elected not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on 5 September 1967 and he recommended the issuance of a GD.  On 8 November 1967, the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He completed 7 months and 11 days of total active service.  He received a GD.

11.  Item 3 (Social Security Number) on the DD Form 214 he received lists his SSN as XXX-5X-XXXX.

12.  A review of the available record does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  The applicant provides VISTA Electronic Medical Documentation Progress Notes which show he was diagnosed with PTSD and major depressive disorder on 24 July 2014.  He provides his Statement in Support of Claim for Service Connection for PTSD and his Statement in Support of Claim.  He also provides a copy of his Social Security Card which shows his SSN as XXX-4X-XXXX.

14.  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 UOTHC 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.

15.  Army Regulation 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 HD or GD was issued as determined by the separation authority based upon the individual's entire record.

16.  Army Regulation 635-200 governs the separation of enlisted personnel.  It 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 personality disorder (formerly known as a character and behavior 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's contentions have been noted.  His supporting evidence has been considered.

2.  The applicant does not meet the criteria set by the Secretary of Defense in 2014 for consideration for an upgrade of his discharge from GD to HD.  However, he does meet the criteria for consideration for an upgrade of his discharge based on the Brotzman/Nelson memoranda.

3.  He was discharged after being diagnosed with a character and behavior disorder.  According to the Nelson Memorandum, the presence of a personality disorder diagnosis would justify upgrade of a discharge to an HD 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 a "clear and demonstrable reasons" which would justify a less than fully HD discharge.

4.  The applicant's records show that he was convicted once by a special court-martial.  His records contain no general court-martial convictions.  Accordingly, his GD should be upgraded to an HD.

5.  The only document contained in the applicant's record that shows his SSN as XXX-5X-XXXX is his DD Form 214.  All other documents requiring the use of his SSN show his SSN as XXX-4X-XXXX.  His DD Form 214 should be amended to show his correct SSN.

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 the applicant an Honorable Discharge Certificate, dated 
17 November 1967, in lieu of the General Discharge Certificate of the same date he now holds, and

	b.  issuing the applicant a new DD Form 214 showing he received a fully honorable discharge and showing the SSN listed on his social security card.




      __________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)                                         AR20140018855



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ABCMR Record of Proceedings (cont)                                         AR20140018855



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