BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020623 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he was found not guilty by a special court-martial, but no explanation was given as to why he did not receive a fully honorable discharge. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 was inducted into the Army of the United States on 6 June 1967.  He was transferred to Fort Bliss, Texas to undergo basic training.

3.  On 5 July 1967, nonjudicial punishment (NJP) was imposed against him for being absent from his unit without authority on 1 July 1967.

4.  He completed basic training and was transferred to Fort Huachuca, Arizona to undergo advanced individual training (AIT) as a field wireman.  He completed that training and was transferred to Germany on 27 October 1967.

5.  On 27 December 1967, he was tried by a summary court-martial for the offense of stealing from another Soldier and he was found not guilty.

6.  During the period of 18 January to 13 February 1968, NJP was imposed against him on four occasions for failure to go to his place of duty, striking another Soldier in the face, and missing bed check.

7.  On 12 February 1968, the applicant underwent as psychiatric examination and was diagnosed as having a schizoid personality (character and behavior disorder).  The examining physician opined that his effectiveness as a Soldier was impaired because of his character and behavior disorder and further opined that rehabilitation was likely to be ineffective. 

8.  On 29 February 1968, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212, for unsuitability based on his diagnosed character and behavior disorder.  The applicant waived his rights, declined counsel and elected not to submit a statement in his own behalf.  

9.  On 3 April 1968, he was convicted by a special court-martial of stealing $226 from another Soldier.  He was sentenced to confinement at hard labor for 
4 months and a forfeiture of $67 pay for 4 months.

10.  The appropriate authority approved the recommendation for discharge on    8 April 1968 and directed that he be furnished a General Discharge Certificate.

11.  On 17 May 1968, he was discharged the provisions of Army Regulation 
635-212, paragraph 6(b), for unsuitability due to a character and behavior disorder with a general discharge.  He had served 11 months and 12 days of active service. 

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability or unfitness.  It provided, in pertinent part, that members having undesirable habits or traits of character were subject to separation for unsuitability based on a diagnosed character and behavior disorder.  

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations) 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 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, 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, 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.  Convictions by general court-martial or by more than one special court-martial were determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's administrative separation on
17 May 1968 was accomplished in accordance with regulations then in effect.

2.  While the applicant's behavior is not condoned by the Board, the general discharge appears to be unduly harsh considering the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to his entrance into the Army and may exist permanently.




3.  Consequently, it appears the above-mentioned memoranda should be applied to this case and 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:

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.  showing he was discharged from the Army with an Honorable Discharge Certificate on 17 May 1968;

   b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 17 May 1968, in lieu of the certificate currently held by the individual; and

   c.  issuing him a new DD Form 214 reflecting the above corrections.



      _______ _  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)                                         AR20140020623





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ABCMR Record of Proceedings (cont)                                         AR20140020623



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