IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150000874 


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 to honorable.

2.  The applicant states he served his country with honor and deserves an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a third-party letter of support.

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 enlisted in the Regular Army on 14 June 1966 for a period of      3 years and assignment to Europe.  He was assigned to Fort Bliss, Texas, to undergo his basic training.
3.  The applicant was absent without leave (AWOL) on 24 June and remained absent until he was returned to military control on 17 July 1966.  He again began a series of being AWOL on four occasions.  On 27 October 1966, he was convicted pursuant to his pleas by a special court-martial at Fort Ord, California, of being AWOL from 24 June to 18 July, 30 July to 10 August, 14 August to 
25 August, 12 September to 15 September, and 7 October to 12 October 1966.  He was sentenced to confinement at hard labor and forfeiture of pay for 
3 months.  However, on 1 November 1966, the convening authority suspended that portion of his sentence pertaining to confinement at hard labor for a period of 3 months unless sooner vacated.

4.  The applicant remained at Fort Ord to undergo his basic training and on       27 January 1967 he was convicted pursuant to his plea by a special court-martial of being AWOL from 28 November to 30 December 1966.  He was sentenced to confinement at hard labor for 5 months.

5.  The applicant served his confinement, completed his basic training, and performed on-the-job training as a supply clerk at Fort Ord until he was transferred to Germany on 24 August 1967.

6.  On 10 January 1968, nonjudicial punishment was imposed against him for disobeying a lawful order from a superior noncommissioned officer.

7.  On 1 March 1968, he was convicted by a summary court-martial of disobeying a lawful order.  He was sentenced to confinement at hard labor for 15 days, reduction to pay grade E-1, and forfeiture of pay.

8.  On 13 March 1968, the applicant underwent a psychiatric evaluation and he was diagnosed as having an immature personality with aggressiveness.  The examining psychiatrist indicated the applicant was oriented, rational, and coherent and gave no indication of abnormal thinking or behavior suggesting psychosis.  He also indicated the applicant stated his desire to get out of the Army and gave no indication of any desire to adjust to military life.

9.  On 26 March 1968, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability due to a personality disorder.

10.  The applicant waived his rights, declined the opportunity to submit a statement in his own behalf, and declined the opportunity to consult with counsel.

11.  The appropriate authority approved the recommendation for discharge on    27 March 1968 and directed that he be furnished a General Discharge Certificate.

12.  On 25 April 1968, he was discharged under the provisions of Army Regulation 635-212, paragraph 6(b), for unsuitability due to a character and behavior disorder with a general discharge.  He completed 1 year, 3 months, and 10 days of total active service with 214 days of lost time due to AWOL and confinement.

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

14.  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 that members having undesirable habits or traits of character were subject to separation for unsuitability based on a diagnosed character and behavior disorder.

15.  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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would jeopardize his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant was convicted by two special court-martials and one summary court-martial and he had 214 days of lost time during his relatively short period of service.  Consequently, it appears the above-mentioned memoranda should not be applied to this case and his discharge should not be upgraded to honorable.

4.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses during a short period of service and his otherwise undistinguished record of service.  Additionally, the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits.

5.  Accordingly, the applicant's overall service simply did not rise to the level of a fully honorable discharge.

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 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)                                         AR20150000874





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ABCMR Record of Proceedings (cont)                                         AR20150000874



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