IN THE CASE OF:  	  

		BOARD DATE:  30 June 2015	  

		DOCKET NUMBER:  AR20140019360 


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 the following:

* an upgrade of his general discharge to an honorable discharge
* removal of his court-martial conviction
* a personal appearance before the Board

2.  The applicant states he was a Project 100,000 draftee who failed the mental portion of U.S. Army testing as evidenced by his "U.S. 67" service number.  He was unable to functionally read and write.  He could not cope with military service.  He was convicted by a court-martial.  His reenlistment (RE) code was RE-3/3B meaning "Restricted assignment, parenthood, pregnancy."  He wants an honorable discharge.  He also wants the court-martial conviction removed from his military records.  He never knew he was a Project 100,000 enlistee until August 2014.  His mental health problems are evident from his personal history in the military and afterwards.  He is currently 50 percent service-connected for mental health issues existing during his military service.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

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 the cases 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.

2.  The applicant was inducted into the Army of the United States (AUS) in pay grade E-1 on 9 June 1969.  His DD Form 47 (Record of Induction) lists in:

* Section II (Local Board Medical Interview) he claimed he had back trouble at the time of his induction; there is no indication he claimed or had any other defects at the time
* Section V (Mental Determination) his mental score was qualifying
* Section VIII (Determination at Induction Examination) he was found acceptable for induction into the Armed Forces

3.  He completed advanced individual training and was awarded military occupational specialty 52A (power generator equipment apprentice).  He was advanced to pay grade E-2 on 9 October 1969.

4.  On 11 February 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for behaving with disrespect toward his superior officer.

5.  A Department of Psychiatry Certificate, dated 13 May 1970, shows he was admitted to the Psychiatry Service on 9 May 1970 and remained there.  The examining psychiatrist diagnosed the applicant with a passive-aggressive personality disorder, chronic, severe, manifested by stubbornness, resentment for authority, explosive outbursts, obstructionism, manipulativeness, and a sense of entitlement.  The examining psychiatrist stated:
   a.  The applicant had a moderate history of various arrests prior to service for theft, disorderly conduct, and assault and the like.  The applicant was administratively unsuitable for further military service.  The applicant was admitted to the Psychiatry Service when he threatened, in his unit, to kill himself because he couldn't take it any longer.  The applicant stated he wished to get out of the Army in order to better provide for his three children, but it took too long for a hardship discharge.  

   b.  The applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He found the applicant was mentally responsible and was able to distinguish right from wrong.  He recommended the applicant's separation from the service under to the provisions of Army Regulation (AR) 635-212 (Unfitness or Unsuitability).

6.  On 4 May 1970, he was convicted by a summary court-martial of one specification each of being disrespectful in language toward his superior noncommissioned officer, disobeying a lawful order issued by his first sergeant, and wrongfully communicating a threat to his platoon sergeant to kill him.  He was sentenced to 15 days of confinement at hard labor and a reduction to pay grade E-1.  

7.  On 16 May 1970, the applicant's unit commander advised the applicant he was initiating action to discharge the applicant under the provisions of      AR 635-212, by reason of unsuitability, with an undesirable or general discharge. He advised the applicant of his rights.

8.  On 27 May 1970, the convening authority approved his court-martial sentence, ordered it executed, and he was placed in confinement.

9.  On 27 May 1970, after consulting with counsel, the applicant acknowledged receipt of the proposed elimination action.  He also acknowledged he could receive a general or an undesirable discharge and the result of the issuance of such discharges.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 17 June 1970, the applicant's unit commander recommended the applicant be discharged with a general discharge under the provisions of AR 635-212, paragraph 6b(2), for unsuitability.  He stated the discharge was recommended because of the applicant's passive-aggressive personality.
11.  On 18 June 1970, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge and a Separation Program Number (SPN) of "264."

12.  He was discharged accordingly, in pay grade E-2, on 22 June 1970.  He was credited with completing 1 year and 1 month of active service and 13 days of time lost.    His service was characterized as under honorable conditions and he was issued a General Discharge Certificate.  His DD Form 214 lists in:

* Item 11c (Reason and Authority) – AR 635-212, SPN 264
* Item 15 (RE Code) – RE-3/3B
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Marksman Marksmanship Qualification Badge with Rifle Bar

13.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 38 (Record of Assignments) he received "excellent" and "unsatisfactory" conduct and efficiency ratings
* Item 41 (Awards and Decorations) the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar

14.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  AR 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under these provisions could receive either an honorable or a general discharge.

16.  On 23 November 1972, AR 635-200 (Personnel Separations – Enlisted Separations) was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by AR 635-212.  A Department of the Army (DA) Message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder” and AR 635-200 was revised on 1 December 1976.  

17.  A DA 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.

18.  Department of Defense (DoD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code (USC), section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

19.  AR 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 states when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions (general) may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one special court-martial during the current enlistment.

20.  AR 635-5-1 (Separation Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of AR 635-212, by reason of character and behavior disorder.  

21.  AR 600-8-22 (Military Award) states the National Defense Service Medal is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive; between 1 January 1961 and 14 August 1974, both dates inclusive; between 2 August 1990 and 30 November 1995; and from 11 September 2001 to a date to be determined. 

22.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

23.  AR 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.
24.  AR 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the AUS and Reserve.  The regulation provided that prior to discharge or release from active duty individual would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 included a list of Armed Forces RE codes, including the following RA RE codes:

* RE- 3 – applied to persons who were not qualified for continued Army service; but disqualification was waivable
* RE-3b – applied to persons who had lost time during their last period of service and they were ineligible for enlistment unless a waiver was granted

25.  Project 100,000 (also McNamara's 100,000) was a 1960s DoD program to recruit Soldiers that would previously have been below military mental or medical standards. 

DISCUSSION AND CONCLUSIONS:

1.  With regard to an upgrade of the applicant's general discharge:

   a.  The evidence of record shows he was admitted to the Psychiatry Service and was diagnosed with a passive-aggressive personality.  His unit commander initiated action to separate him under the provisions of AR 635-212, by reason of unsuitability (character and behavior disorder).  Prior to the finalization of his discharge, he was convicted by a summary court-martial.  The convening authority approved his sentence and ordered it executed.  

   b.  The separation authority approved his separation with a general discharge and he was discharged accordingly.  It appears his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.  

   c.  Although he was convicted by a summary court-marital, under current regulations, members separated by reason of a personality disorder (character and behavior disorder) must be issued an honorable discharge unless they have been convicted by a general court-martial or more than one special court-martial. 
   
   d.  Therefore, his discharge is too harsh under current standards and it would be appropriate to upgrade his discharge to an honorable discharge in the interest of equity. 

2.  In view of this upgrade of his discharge to honorable and his award of the National Defense Service Medal, his DD Form 214 should be corrected to show this award.

3.  With regard to items 11c and 15 of his DD Form 214:

   a.  He was properly assigned SPN 264 based on the authority and reason for his separation.  

   b.  Also, in the absence of evidence to the contrary, it must be presumed that he was issued a RE code of RE-3 based on his separation and being disqualified for continued Army service.  

   c.  He was credited with 13 days of time lost; therefore, it must be presumed he was issued RE-3B based on his having lost time during his last period of service in accordance with the regulation in effect at the time.  Therefore, it appears the issuance of his RE codes RE-3/3B were specifically linked to separation and his having lost time and no other reasons.  

   d.  There is no available evidence and he has provide none to show his assigned service number, assigned SPN, and RE code are in error or unjust.  Therefore, there is insufficient to support changing them.

4.  With regard to removal of his court-martial conviction from his military records:

   a.  His summary court-martial conviction was approved, ordered executed, and he was placed in confinement.  It appears, his sentence to a reduction to pay grade E-1 was not initiated as he was subsequently discharged in pay grade E-2. 
   
   b.  He provided no evidence showing the charges were not valid.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  Trial by court-martial was warranted by the offenses changed.  

   c.  By law, this Board cannot disturb the finality of a court-martial conviction, and he has not established a basis for granting clemency.  Therefore, there is no basis for granting him the requested relief.

5.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ 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 partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* voiding his general discharge under the provisions of AR 635-212 which was issued on 22 June 1970 and issuing him an honorable discharge with the same date
* issuing him an Honorable Discharge Certificate from the United States Army, dated 22 June 1970, in lieu of the General Discharge Certificate he now holds
* adding to his DD Form 214 the National Defense Service Medal

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* removal of his court-martial conviction from his military records
* a personal appearance before the Board



      _______ _   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)                                         AR20140019360





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ABCMR Record of Proceedings (cont)                                         AR20140019360



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