IN THE CASE OF:	

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150001385 


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 an honorable discharge.

2.  The applicant states he was offered the opportunity to be discharged without any negative consequences in lieu of being reassigned or transferred to another unit after he had been threatened by a non-commissioned officer (NCO) within his chain of command.  Prior to his reporting the threats by an NCO he received nonjudicial punishment (NJP) for an emotional outburst which occurred while he was standing in formation for a uniform inspection.  The NCO conducting the inspection yelled at him for being out of uniform and he became emotionally upset.  He then left formation as the NCO was yelling at him and walked directly to sick bay where he was referred to mental health.  He described an incident with the NCO in the barracks where the NCO punched him.  He reported the incident to battalion headquarters.  The battalion commander asked if he would like to be discharged.  He explained he could be processed out due to the reduction in Army staff.  He agreed with the offer under the condition that it would be an honorable discharge.

3.  He never experienced any negative consequences during his civilian career due to his general discharge until he applied for a concealed handgun license for Texas residents.

4.  The applicant provides his denial for a concealed handgun license.


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 29 September 1971, he enlisted in the Regular Army for 3 years.  On 
1 March 1972, he extended his enlisted for 5 months.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Corpsman).  On 15 February 1973, he was assigned to Company B, 9th Medical Battalion, 9th Infantry Division at Fort Lewis, WA.

3.  On 24 October 1973, he accepted NJP for:

* failing to obey a lawful order from an NCO
* going from his appointed place of duty without authority
* failing to go at the time prescribed to his appointed place of duty

4.  On 1 November 1973, he was given a mental status evaluation by Medical Corps major, who was the Chief, Mental Hygiene Consultation Service (MHCS). The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner stated:

	a.  The diagnosis was inadequate personality, chronic, severe, manifested by poor impulse control, low stress tolerance, poor judgment, manipulativeness, legal difficulties, and inadaptability.

	b.  He did not believe the applicant's condition was amenable to any form of punishment, retraining, or other forms of rehabilitation with the military setting.

	c.  Due to the severity of the applicant's character and behavior disorder, he recommended the applicant be separated as unsuitable for military service under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel).

5.  On 5 November 1973, his commander advised him that proceedings had been initiated to discharge him from the service under the provisions of chapter 13 of Army Regulation 635-200.  The basis for the proposed discharge was unsuitability.  The applicant was advised of his right to present his case before a board of officers, to submit statements in his own behalf, to request appointment of a military counsel or representation by military counsel of his choice or civilian counsel, to waive the above rights in writing, and to consult with counsel prior to requesting or waiving the above rights.  

6.  On 5 November 1973, the applicant's commander recommended he be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration of his term of service.  Discharge was recommended because of the applicant's unsuitability.

7.  On 6 November 1973, the applicant waived consideration by a board of officers and waived a personal appearance before a board of officers.  The applicant also declined to submit statements in his own behalf and he waived any representation by counsel.

8.  The Commander, 9th Infantry Division approved the applicant's discharge under the provisions of paragraph 13-5b(2) of Army Regulation 635-200 by reason of unsuitability.  He directed a General Discharge Certificate be issued.

9.  On 13 November 1973, he was discharged under the provisions of paragraph 15-5b(2) of Army Regulation 635-200.  Item 11c (Reason and Authority) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the separation designator (SPN) "264."  He completed 
2 years, 1 month, and 15 days of active service that was characterized as under honorable conditions.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation showed that the SPD "264" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as " Unsuitability -  character and behavior disorders" and that the authority for discharge under this separation program designator was "Army Regulation paragraph 13-5b(2)."

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

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b(2) provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  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.

13.  Army Regulation 635-200 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. 

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant was diagnosed with a character and behavior disorder by the Chief, MHCS.

3.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

4.  The Nelson Memorandum 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.

5.  The offenses that he received NJP for were not so egregious that they present a "clearly demonstrable reason why a fully honorable discharge should not be given."

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.  voiding the general discharge now held by the applicant;

	b.  showing the applicant was discharged from the service with an honorable discharge on 13 November 1973; and

	c.  issuing him an Honorable Discharge Certificate, dated 13 November 1973, in lieu of the general discharge of the same date now held by him.



      ___________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)                                         AR20150001385





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ABCMR Record of Proceedings (cont)                                         AR20150001385



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