IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20150002693 


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 his general discharge be upgraded to honorable.

2.  The applicant states that post-traumatic stress disorder (PTSD) resulting from his combat experiences in Vietnam made it impossible to deal with military life once he returned.

3.  The applicant provides a copy of a 2 July 2013 Department of Veterans Affairs rating decision showing that, effective 24 October 2012, he was granted service connected disability benefits for PTSD rated at 30 percent.

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 on 5 July 1967 and completed basic and advanced individual training in military occupational training 76A as a unit supply clerk.  After basic airborne training he served in Germany until 21 June 1968 when he reenlisted for orders to Vietnam.  There he was advanced to pay grade E-4 on 15 December 1968.  He received nonjudicial punishment (NJP) on 11 June 1969 for being disrespectful toward a superior ranking noncommissioned officer (NCO) and he had consistently exhibited unsatisfactory performance. 

3.  He served as a supply clerk in Vietnam with 704th Maintenance Battalion, 4th Infantry Division, from 31 August 1968 to 20 August 1969.  Following his return to the United States he was stationed at Fort Carson Colorado. 

4.  His DA Form 20 (Enlisted Personnel Record) shows a 3-day absence without leave (AWOL) in April 1970 and a 19-day AWOL in May-June 1970.

5.  On 25 June 1970, the applicant consulted with counsel and acknowledged that he had been advised of the contemplated separation action due to unsuitability.

	a.  He waived consideration of his case by a board of officers, personal appearance before such board, submissions of statements on his own behalf, and representation by counsel.

	b.  He also indicated that he understood that a discharge under conditions other than honorable might make him ineligible for veteran benefits under Federal and/or state law and that he might expect to encounter substantial prejudice in civilian life.

6.  A 30 June 1970 neuropsychiatric report shows:

	a.  a diagnosis of passive-aggressive personality; 

	b.  a recommendation that reads, "There is no psychiatric condition which would warrant separation under current medical regulations.  It is recommended that he be separated from the military service under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability)"; and

	c.  a narrative that relates – 

This 20-year old private E-2, with 35 months military service, was sent to the Mental Health Consultation Service for pre-board evaluation under AR 635-212 on 29 Jun 70.  The patient has been AWOL three times and has received seven Articles 15.  The patient has a history of inability to effectively deal with authority figures which date(s) back to school years.  For example, the patient was expelled and then he dropped out of school during his ninth year because of his personality disorder relating to authority figures.  The patient reported he has been counseled by a psychiatrist while serving in the Republic of Vietnam.  The patient stated he had no definite plans for the future and that all he wants now is to get out of the Army. 

7.  On 6 July 1970, the company commander recommended the applicant be discharged due to unsuitability.  He noted that since October 1970, when the applicant had joined the unit, he had served under several different officers and NCOs.  He had been counseled repeatedly.  The commander listed five NJPs.  All of these were for violation of Article 86, Uniform Code of Military Justice, which could have been for AWOL or for absence from his place of duty.

8.  The chain of command recommended a general discharge and the separation authority so directed.

9.  On 17 July 1970, the applicant was separated with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.

10.  On 13 September 1980, the Army Discharge Review Board considered the applicant’s case and denied his request to recharacterize the discharge.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

12.  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 was 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.  

13.  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.  He was diagnosed with a character and behavior disorder by a psychiatrist.  His discharge under the provisions of Army Regulation 635-212 for unsuitability was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, at the time of his separation, the type of discharge directed was appropriate and equitable.

2.  However, the Brotzman-Nelson directives imposed specific criteria to be applied to discharges for character and behavioral disorders.  Therefore, in view of the foregoing the applicant's military service record should be corrected to show he was honorably discharged, effective 17 June 1970, under the extraordinary provisions of Department of the Army Memorandum, dated 8 February 1978.

3.  In view of the fact that full relief is warranted by the above the PTSD issue is irrelevant.

4.  The applicant's general discharge should be re-characterized to 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:

	a.  issuing the applicant an Honorable Discharge Certificate, dated 
17 June 1970, in lieu of the General Discharge Certificate of the same date he now holds, and

	b.  issuing the applicant a new DD Form 214 reflecting an "Honorable" character of service.




      _______ _   __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)                                         AR20150002693



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002693



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1