IN THE CASE OF:	   

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20150004890 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he suffered from the symptoms of post-traumatic stress disorder (PTSD) from the time he was discharged from the hospital in Fort Riley, KS to the date of his discharge.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 19 October 1970
* DD Form 215 (Correction to DD Form 214), dated 30 March 1984
* DD Form 214 with an effective date of 17 December 1971
* Department of Veterans Affairs (VA) Rating Decision, dated 22 December 2009

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 30 June 1969, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63G (Fuel and Electrical Systems Repairer).

3.  He served in the Republic of Vietnam with the 2nd Battalion, 20th Artillery from 4 March 1970 to 14 May 1970.  On 15 May 1970, he was awarded the Purple Heart for wounds received in the Republic of Vietnam on 14 May 1970.
He was transferred to the Medical Holding Company, Medical Department Activity, Fort Riley, KS.

4.  On 6 October 1970, he was assigned to the 501st Supply and Transportation Battalion, at Fort Hood, TX.

5.  On 19 October 1970, he was discharged to immediately reenlist.  He had completed 1 year, 3 months, and 20 days of active service that was characterized as honorable.  A DD Form 215, dated 30 March 1984, added the Purple Heart to his DD Form 214 with an effective date of 19 October 1970.

6.  On 20 October 1970, he immediately reenlisted for 6 years for school and assignment to the Army Air Defense Command (ARADCOM) Minnesota area.

7.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) provides the following assignment information:

* 12 February 1971 - Enroute to St. Paul, MN
* 19 March 1971 - Headquarters, 1st Battalion, 60th Artillery, Munster, IN
* 2 April 1970 - Battery B, 1st Battalion, 60th Artillery, Porter, IN

8.  On 21 July 1971, he requested separation from the Army because the Army could not fulfill his reenlistment commitment that he would be assigned to the Minneapolis, MN metropolitan area for 12 months.  On 23 September 1971, Headquarters, Department of the Army, Office of Personnel Operations denied his request to be separated.  He was to make three alternate selections for assignment, one of which would be honored for him to complete the term for which he enlisted.  There is no record of the applicant's selection available for review.

9.  He accepted nonjudicial punishment (NJP) under Article 15, on:
* 2 September 1971 for being disrespectful towards a commissioned officer
* 20 September 1971 for failing to go at the time prescribed to his appointed place of duty

10.  On 4 November 1971, his commander requested that the applicant be tried by a special court-martial for:

* failing to obey a lawful order from a commissioned officer
* three specifications of failing to obey an order (to get a lawnmower and cut the grass) from a noncommissioned officer (NCO)
* assaulting an NCO by raising a swagger stick with his right hand
* wrongfully communicating to an NCO a threat to injure him

11.  On 12 November 1971, court-martial charges were preferred against the applicant for:

* failing to obey a lawful order from a commissioned officer
* three specifications of failing to obey an order (to get a lawnmower and cut the grass) from an NCO
* assaulting an NCO by raising a swagger stick with his right hand
* wrongfully communicating to an NCO a threat to injure him

12.  On 13 December 1971, Department of the Army, Headquarters, 1st Region ARADCOM returned the request for a special court-martial was returned without action.  The reason stated for the returned request was because the applicant's request for an undesirable discharge in lieu of court-martial had been approved by the Commanding General, 1st Region ARADCOM.

13.  There is no record in his official military personnel file (OMPF) of the applicant requesting a discharge in lieu of court-martial.  There is no record in his OMPF of the approval of a request for discharge in lieu of court-martial.

14.  His service medical records were not available for review.  There is no medical evidence in his OMPF of him being diagnosed with a mental condition.

15.  On 17 December 1971, he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).  Item 11c (Reason and Authority) of his DD Form 214 shows the separation designator (SPN) "264."  He completed 1 year, 1 month, and 11 days on this enlistment that was characterized as under conditions other than honorable.  He had 17 days time lost.

16.  Headquarters, Fort Sheridan, Fort Sheridan, IL Special Orders Number 255, dated 17 December 1971, discharged him effective 17 December 1971.  The orders show the reason for discharge as unsuitability and the SPD "264."

17.  The VA Rating Decision, dated 22 December 2009, denied service-connection for PTSD.  His service treatment records were negative for any type of diagnosis of, or treatment for any type of similar condition while in-service.  A VA examination, dated 30 December 2008, failed to provide a confirmed diagnosis of PTSD.  The examination did diagnose depression.  Remaining evidence from VA Medical Center, Minneapolis failed to show a confirmed diagnosis of PTSD.  He was granted service-connection for depression with an evaluation of 50 percent effective 31 October 2008.

18.  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 635-212."

19.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, 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.

20.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, that the general court-martial convening authority may waive the requirements of counseling and rehabilitation when he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or to the individual.  

21.  Army Regulation 635-200 (Personnel 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 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. 

22.  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 contends his discharge should be upgraded because he had suffered from symptoms of PTSD from date of his discharge from the hospital at Fort Riley, KS until his discharge from the Army.  However, based on the authority and SPD shown on his DD Form 214 and his orders for discharge it is presumed he was diagnosed with a character or personality disorder.  

2.  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.

3.  Assistant Secretary Nelson directed, in his memorandum that, upon application for relief by anyone separated for unsuitability due to personality disorder, the Army Discharge Review Boards (ADRB) shall undertake review of their discharges.   The ABCMR reviewed this case because the applicant cannot apply to the ADRB due to the statute of limitations.

4.  The Assistant Secretary further directed that any less than honorable discharge based on a diagnosis by a person other than a medical doctor trained in psychiatry will be upgraded to honorable.  

5.  His NJP and the charges that were referred for court-martial were not so egregious that they present a "clearly demonstrable reason why a fully honorable discharge should not be given."

6.  In view of the above, it is appropriate to upgrade his discharge 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.  voiding his undesirable discharge; and

	b.  showing that he was discharged from the service with an honorable discharge on 17 December 1971.





      _______ _   _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)                                         AR20150004890



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ABCMR Record of Proceedings (cont)                                         AR20150004890



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