IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003138 


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 under other than honorable conditions discharge.

2.  The applicant states:

   a.  He was notified his sister was in the hospital due to a pin-sized hole in her head.  She was bleeding inside her head which caused her to suffer from convulsions and seizures.  She was in the hospital when he was notified of her condition and that she was not expected to live much longer.  The American Red Cross was notified and a message was sent to his command.  The applicant went to his chain of command and requested emergency leave; however, he was informed by his commander that his request was denied and he was required to continue his training.  

   b.  After a few days he left advanced individual training in order to fly home and be with his sister.  Once he returned, he was charged and sent back to training.  He went absent without leave (AWOL) two more times due to the treatment he was receiving.  All he wanted to do was protect this great nation while serving in the Army.  He now knows he was wrong and he will always have to live with his mistake.  Due to his type of discharge, he figured he would not be able to change his character of service.  After seeking guidance from the Social Security Administration for his disabilities, he was told he could request a change; however, it has taken a long time for him to track down his military records.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 for a 3-year term of service in the Regular Army on      9 January 1968.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article     15 of the Uniform Code of Military Justice (UCMJ) on 13 May 1968 for, without authority, absenting himself from his unit for the period 17 April through 29 April 1968.

4.  The evidence shows he pled guilty and he was convicted by a special court-martial of violating two specifications of Article 86, of the UCMJ of being AWOL for the periods 24 June through 3 July and 9 through 16 July 1968.  The court sentenced him to forfeiture of $68.00 pay per month for six months and to be confined at hard labor for six months.  The sentence was adjudged on 6 August 1968 and subsequently approved on 22 August 1968. 

5.  His record contains a Certificate of Psychiatric Evaluation, dated 20 August 1969, which shows the Chief, Mental Hygiene Consultation Service, Irwin Army Hospital, Fort Riley, KS, diagnosed the applicant with a passive-aggressive personality, chronic, severe, manifested by reacting with frustration, anger and hostility.  The psychiatrist further noted the applicant could not be rehabilitated to the extent that he could be an effective Soldier and recommended administrative separation under the provisions of Army Regulation 635-212 (Personnel Separations - Unfitness and Unsuitability).

6.  The applicant's immediate commander notified him of his intent to initiate separation action against him for unfitness in accordance with Army Regulation 635-212 with an undesirable discharge.  Separation action was recommended because the applicant's record reflected four periods of AWOL totaling 266 days. A medical evaluation showed he met the retention standards prescribed in Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), a psychiatric evaluation showed a longstanding character and behavior disorder which would tend to exist permanently, and that the applicant could not be rehabilitated to the extent that he could be an effective Soldier. 

7.  The applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures/rights available to him.  He also acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived representation by counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined to make a statement in his own behalf.

8.  On 16 September 1969, his intermediate commander recommended approval of his separation with the issuance of an Undesirable Discharge Certificate.  It was noted that the applicant was presently pending trial by special court-martial but charges would be dropped upon approval of the discharge.   

9.  On 22 September 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 2 October 1969.

10.  His DD Form 214 shows he completed a total of 8 months and 2 days of creditable active military service with 387 days of lost time.

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

12.  The applicant provided no evidence to support his claims surrounding the hospitalization of his sister and/or the events related to his request for emergency leave. 

13.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  

	a.  Paragraph 3-7a, 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 3-7b, a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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 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, and 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.

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's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant's service was characterized by his conviction by a special court-martial in addition to instances of NJP under the provisions of Article 15 of the UCMJ.  The evidence shows he was routinely AWOL, and disregarded military authority.  As a result, his immediate commander initiated separation action against him for unfitness under Army Regulation 635-212.

3.  A psychiatric evaluation, dated 20 August 1969, shows he was diagnosed with a passive-aggressive personality, chronic, severe, manifested by reacting with frustration, anger, and hostility.  He was discharged for unsuitability due to this character and behavior disorder with an under conditions other than honorable discharge.  His administrative separation on 2 October 1969 was accomplished in accordance with regulations then in effect.

4.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant should receive an honorable discharge consistent with these standards.

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 2 October 1969, in lieu of the Undesirable Discharge Certificate of the same date now held by him; and

   b.  issuing the applicant 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)                                         AR20150003138



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ABCMR Record of Proceedings (cont)                                         AR20150003138



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