BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140021626 


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, in effect, an upgrade of his under honorable conditions (general) discharge. 

2.  The applicant states, in effect, there was prejudice at the time.  He and his spouse was a mixed couple and they had a baby.  He needed some time.  

3.  The applicant does not provide any 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 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's records show he enlisted in the Regular Army for a 3-year term on 9 March 1964.  He was assigned to Fort Knox, KY for training.  

3.  On 17 April 1964, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his place of duty without permission. 

4.  On 4 May 1964, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful to a noncommissioned officer. 

5.  On 10 June 1964, he departed his unit in an absent without leave (AWOL) status and on 9 July 1964, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities and returned to military control on 21 July 1964. 

6.  On 13 August 1964, he was convicted by a special court-martial of one specification of AWOL from 10 June to 21 July 1964.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay.  The convening authority approved a lesser sentence by suspending the 3-month confinement for a period of 3 months.  

7.  On 6 October 1964, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 2 to 4 October 1964. 

8.  On 8 October 1964, the applicant's immediate commander notified the applicant of his intent to process him for elimination under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Inaptitude or Unsuitability).  The immediate commander stated the applicant stated he was not satisfied with the Army and that it was not what he expected.  He also stated that he had gotten married and could have a problem supporting his family.  His behavior was belligerent and cold.  He wanted out of the Army.  

9.  On 12 October 1964, the applicant underwent a mental status evaluation.  A Mental Hygiene Consultation Service Certificate shows he was considered to be mentally responsible, able to distinguish right from wrong, and had the capacity to understand and participate in board proceedings.  He had no disqualifying mental defects sufficient to warrant disposition through medical channels.  His diagnosis was that of personality antisocial, chronic, severe, manifested by negative motivation with recurrent disciplinary difficulties and poor social adjustment, not in line of duty, existed prior to service.  He wanted to get out of the Army and his attitude and behavior provided ample evidence of that.  He had a hostile attitude toward authority and he was not responsive to counseling or guidance.  He did not profit from experience or punishment.  His elimination for unsuitability was recommended.  His retention would have resulted in only further difficulties. 

10.  On 16 October 1964, the applicant acknowledged receipt of the notification memorandum to separate him for unsuitability.  He acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.  He indicated he fully understood that if the discharge authority approved the recommendation for discharge, the discharge authority would determine the type of discharge he would receive.  He finally indicated he voluntarily signed this acknowledgement of his own free will. 

11.  On 17 October 1964, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-209 by reason of unsuitability.  The immediate commander cited the applicant's habitual AWOL, Article 15s, special court-martial, bad attitude, failure to respond to counseling, noncooperation toward a communication instructor who tried to train him on a radio, and other disciplinary issues.  The applicant was offered to train in a different specialty but he refused and insisted on getting out of the Army.  The commander added that the applicant had a summary court-martial on his record for an AWOL offense when he was AWOL for 34 days.  The commander recommended a general discharge. 

12.  On 19 October 1964, the applicant's intermediate and senior commanders echoed the same remarks.  The intermediate commander opined that the applicant would go AWOL again without hesitation.  He had no value to the Army and his elimination was recommended. 

13.  On 22 October 1964, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 4 November 1964.  

14.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 4 months and 26 days  of creditable active military service and he had 92 days of lost time.  He was assigned separation program number (SPN) 264.

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

16.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations) currently provides the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, which superseded Army Regulation 635-209, 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.

19.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for an SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "264" was the code assigned to Soldiers separated under the provisions of Army Regulation 635-209 by reason of unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his discharge should be upgraded.

2.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes several instances of NJP, a court-martial conviction, and multiple instances of AWOL.  Accordingly, his immediate commander initiated separation action against him.  

3.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  Nevertheless, the Brotzman Memorandum mandated that the presence of a personality disorder (formerly known as character and behavior 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.  The applicant in this case was convicted by only one special court-martial and possibly by a summary court-martial.  Therefore, his discharge should be upgraded to fully honorable.

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 amending his records as follows: 

	a.  showing the individual concerned was separated from the service with an honorable discharge on 4 November 1964;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 4 November 1964, in lieu of the General Discharge Certificate of the same date now held by him; 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)                                         AR20140021626





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ABCMR Record of Proceedings (cont)                                         AR20140021626



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