IN THE CASE OF:  

		BOARD DATE:  7 July 2015    

		DOCKET NUMBER:  AR20140019710


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 correction of his military records by showing that his general under honorable conditions characterization of service was upgraded to honorable.

2.  The applicant states he served in the Republic of Vietnam (RVN) and now feels he suffers from post-traumatic stress disorder (PTSD).  He was sent from the RVN directly to the Federal Republic of Germany (FRG).  He was not given any time to decompress before going into another overseas environment.  He admits that he did things wrong in the FRG, but he truly believes he was not in a proper state of mind.  He is sorry for his mistakes and accepts full responsibility for them.  Since his release from the U.S. Army, he has never been in any trouble.  He is currently seeing a psychiatrist and a psychologist.

3.  The applicant provides no additional 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.  On 21 October 1968, the applicant enlisted in the Regular Army and completed training as a light weapons infantryman.

3.  On or about 10 March 1969, the applicant departed Fort Jackson, SC for duty in the RVN.

	a.  On 14 April 1969, he was assigned as a rifleman with Company D, 2nd Battalion, 3rd Infantry Regiment, 199th Infantry Brigade.

	b.  On 11 July 1969, he was reassigned to Company D, 34th Engineer Battalion, 20th Engineer Brigade as a plumber.

	c.  Special Orders Number 244, 199th Infantry Brigade, dated 1 September 1969, announced the applicant's award of the Combat Infantryman Badge for his duty while assigned with the 3rd Infantry Regiment.

	d.  On 21 May 1970, he was assigned as a tractor operator within the same unit.

	e.  On 17 July 1970, he was promoted to specialist five, pay grade E-5.

	f.  All of the applicant's conduct and efficiency ratings from October 1968 to 
5 December 1970 were excellent.

	g.  On 5 December 1970, the applicant departed the RVN.

4.  On 22 January 1971, the applicant was assigned as a tractor operator with the 12th Engineer Battalion located in the FRG.

5.  The applicant accepted the following nonjudicial punishment (NJP):

* On 20 October 1971: for wrongful possession of marijuana
* On 2 February 1972: for being absent from his place of duty for about        5 days

6.  On 11 February 1972, the applicant's commander notified him of his intention to initiate action to discharge him from the U.S. Army under the provisions of Army Regulation 635-212, due to unsuitability.  The applicant was informed of his rights which included requesting a psychiatric examination.
7.  In an undated document, the applicant indicated his desire to waive consideration of his case by a board of officers or to appear before such a board.  He further indicated that he did not submit a statement on his own behalf and waived examination by a psychiatrist.  The document also shows that he was advised by legal counsel.

8.  The applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unsuitability.  The commander's recommendation was based on the applicant's lack of adaptability and apathetic nature resulting in a lack of appropriate interest, defective attitude, and the inability to expend effort constructively.  The commander recommended that rehabilitative transfer be waived.

9.  On 22 February 1972, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory was good.  There was no serious mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

10.  On 23 February 1972, the appropriate authority approved the separation action and directed the issuance of a DD Form 257A (General Discharge Certificate).

11.  On 6 March 1972, the applicant was discharged accordingly.  He completed a total of 3 years, 4 months, and 16 days creditable active service.  His DD Form 214 shows he was discharged under the authority of Army Regulation 635-212 with SPN 46A indicating unsuitability due to apathy, defective attitude, and inability to expend effort constructively.

12.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for discharge due to unsuitability because of apathy by a displayed 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.



14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  This regulation 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.

   b.  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.

	c.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing his general under honorable conditions characterization of service was upgraded to honorable because he was suffering from PTSD.

2.  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 type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.



3.  There is no evidence showing the applicant was diagnosed with a personality disorder while on active duty, or that such a condition may have caused a change in his ability perform his duties.  Therefore, the provisions of the Brotzman and Nelson memorandums cannot be applied in this case.  Further, he has not provided evidence that he has been diagnosed with PTSD by a medical provider qualified to make that diagnosis.

4.  The available evidence shows the applicant accepted NJP twice.  Even though this misconduct was not included in the basis for his administrative discharge, it did significantly impact the overall quality of his service and supports the commander's decision for directing an under honorable conditions characterization of service.

5.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20150005395



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ABCMR Record of Proceedings (cont)                                         AR20140019710



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