IN THE CASE OF:  

		BOARD DATE:  31 March 2015

		DOCKET NUMBER:  AR20150002991 


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 honorable. 

2.  The applicant states, in effect, the recruiter promised him automotive mechanics training and he never received it.  He was very proud to serve and did very well in training.  He went to Vietnam and did everything he was told to do.  He was a tunnel rat and walked point on patrol.  He was wounded in combat and now suffers from post-traumatic stress disorder (PTSD).  He was upset about not getting the training he was promised and went absent without leave (AWOL).  He is receiving treatment for his PTSD from the Department of Veterans Affairs (VA).  He would very much like to have his discharge upgraded to honorable so he can get on with his life.

3.  The applicant provides copies of –

* Army Review Boards Agency letter, dated 18 December 2014
* DD Form 293 (Application for the Review of Discharge or Dismissal from the  Armed Forces of the United States), dated 9 December 2014
* VA Progress Notes, dated 22 December 2010

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 4 December 1968.  He held military occupational specialty 11B (Light Weapons Infantryman).  

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 22 May 1969 to 29 April 1970.  He was wounded in action and awarded the Purple Heart.

4.  He accepted nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 18 August 1970, for being AWOL from 13 to 17 August 1970
* 7 January 1971, for being AWOL from 8 September to 31 December 1970

5.  On 3 February 1971, the unit commander notified the applicant of his intention to separate him from the service under the provisions of Army Regulation 
635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness based on his AWOL record.  

6.  The applicant consulted with counsel and elected to waive further counsel.  He also indicated he did not desire to submit a statement in his own behalf.

7.  A Fort Leonard Wood (FLW) Form 107 (Report of Psychiatric Evaluation), dated 8 February 1971, shows the applicant was diagnosed with a passive aggressive personality disorder, severe.  

	a.  The findings show:

		(1)  He met retention standards.

		(2)  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.


		(3)  The applicant had a severe character and behavior disorder with no violent tendencies, but it was believed the applicant was not amenable to further rehabilitative efforts or that he had the potential to become an effective Soldier. 

		(4)  The applicant was responsible, both to distinguish right from wrong and to adhere to the right.  He also had the mental capacity to understand and participate in board proceedings.

		(5)  The applicant was cleared for any administrative decision deemed appropriate by his chain of command.

	b.  Comments are annotated on this form to show the applicant, "Does not like the Army and will continue to go AWOL until obtains a discharge."

8.  On 3 March 1971, the applicant's unit commander recommended the applicant's discharge for unsuitability and stated, "Recommend discharge due to severe nature of EM's psychiatric report, intentional absences without proper authority, excessive time lost in the service and a character and behavior disorder resulting in his failure to adjust to military service."  The commander recommended the issuance of a General Discharge Certificate.  

9.  The battalion commander recommended approval and stated, "Because of his severe personality disorder, inability to adjust to military life and discipline, and complete lack of any proper motivation and interest, I am convinced that this individual can be of no value to the service and should be discharged without delay."

10.  On 8 March 1971, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.

11.  Accordingly, the applicant was discharged under honorable conditions on 
25 March 1971.  He had completed 1 year, 11 months, and 11 days of creditable active service.

12.  He provides VA Progress Notes, dated 23 December 2012, showing he presented that day with symptoms of PTSD.

13.  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.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  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.

	b.  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.

15.  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.

16.  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 were determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his general discharge.  He went to Vietnam, was wounded in combat, and suffers from PTSD.  He is receiving treatment for his PTSD from the Department of Veterans Affairs (VA).  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  

3.  However, based on the applicant's discharge for unsuitability due to a character and behavior disorder, the Brotzman/Nelson memoranda require the applicant's discharge be upgraded to honorable.  Therefore, it would be appropriate at this time to upgrade his discharge from a general to an honorable discharge.

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 him a new DD Form 214 showing he was honorably discharged; and 

	b.  issuing him a DD Form 256 (Honorable Discharge Certificate).


      ____________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)                                         AR20130019134



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ABCMR Record of Proceedings (cont)                                         AR20150002991



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