IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20150005395 


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 correction of his military records by showing that his general under honorable conditions characterization of service was upgraded to honorable.

2.  The applicant states, in effect, he was discharged under Army Regulation 635-212 (Personnel Separations) and he was assigned separation program number (SPN) 46A for Unsuitability.  He contends that he was suffering from post-traumatic stress disorder (PTSD).  He feels his actions and behaviors were the result of his PTSD.  His inability to adapt and conform to military life from 
21 February 1968 to 24 February 1969 is evidenced by his unsatisfactory conduct and efficiency ratings.  He was convicted by two summary court-martial (SMC), and received nonjudicial punishment (NJP) on six separate occasions.  His rank was reduced to private, pay grade E-1.  He did not know what was happening because he was suffering from PTSD.  He was unable to receive treatment or to explain himself.  His misbehavior continued and his military service was a nightmare.  He was unable to perform or adjust.  He honestly believes his discharge should have been based on his medical condition.  He should have been offered appropriate rehabilitation.  Instead, he was transferred from one company to another until he was discharged.  His PTSD condition slipped through the cracks.  He believes justice would be in the form of an upgrade of his discharge.  Currently, he receives military compensation for PTSD, hearing loss, depression, and for being unemployable.  His plan was to make a career of the military but due to PTSD it did not happen.  After he was discharged, he self medicated.  His PTSD continued for many years until he entered treatment at the Department of Veterans Affairs (VA).  He completed a college degree and until recently was able to work.

3.  The applicant provides copies of:

	a.  Military records:

* DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 7 July 1967
* DA Forms 2627-1, dated 5 July 1968, 15 August 1968, 16 December 1968, and 17 March 1969
* A DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction)
* DA Form 2627, (Summarized Record of Proceedings Under Article 15, UCMJ), dated 29 January 1969
* Letter, Subject:  Separation under Army Regulation 635-212, dated 
17 March 1969, from the applicant and his legal counsel, to the 66th Transportation Company 
* Letter, Subject:  Discharge for Unsuitability Under Army Regulation
635-212, dated 18 March 1969, from the 66th Transportation Company
* Special Orders Number 97, Fort Dix, New Jersey, dated 7 April 1969
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 7 April 1969
* A DA Form 20 (Enlisted Qualification Record) page 3 only

	b.  VA Records:

* VA Special Report/Treatment Plan, dated 5 May 1995 (4 pages)
* VA Rating Decision, dated 23 November 2010 (6 pages)

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 26 February 1965, the applicant enlisted in the Regular Army and completed training as an ammunition storage specialist.

3.  On or about 28 September 1965, the applicant was assigned to the 661st Ordnance Company located at Fort Sill, Oklahoma.  On or about 23 November 1965, he arrived with his unit in the Republic of Vietnam (RVN).  He performed the duties associated with an ammunition storage helper for about 10 months.  He returned to the United States on or about 28 September 1966.

4.  On or about 1 December 1966, the applicant was assigned to the Federal Republic of Germany.  On 31 January 1968, he was honorably discharged for the purpose of immediate reenlistment for 3 years.

5.  The applicant accepted the following NJP and SMC on:

	a.  10 July 1967:  NJP for assaulting another Soldier by striking him with his hand;

	b.  8 July 1968:  NJP for willfully disobeying a lawful command from a commissioned officer to remain on post;

	c.  16 August 1968:  NJP for what appears to have been a failure to report (documents are illegible);

	d.  16 December 1968:  NJP for being absent without leave (AWOL) and failing to go to his appointed place of duty (three separate incidents);

	e.  9 January 1969:  SCM for being AWOL (two specifications) and breaking restriction;

	f.  29 January 1969:  NJP for failing to properly display his vehicle registration decal and for failing to properly secure license plates to the same vehicle;

	g.  26 February 1969:  SCM for breaking restriction; and

	h.  17 March 1969:  NJP for being AWOL.



6.  An AE Form 3087 (Report of Psychiatric Evaluation) dated 29 January 1969 reports the applicant was diagnosed with having chronically severe emotional instability manifested by impulsivity, egocentric attitudes, and constant conflict with authority.  His condition was determined to have existed prior to service (EPTS).

7.  In a letter, dated 17 March 1969, the applicant acknowledged he had been advised by legal counsel of the basis for the contemplated action to separate him from the military service due to unsuitability under the provisions of Army Regulation 635-212.  In this letter the applicant waived consideration of his case by a board of officers, appearance before such a board, and further representation.  He also elected not to submit a statement in his own behalf.

8.  On 18 March 1969, the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unsuitability.  The commander stated the applicant had continually demonstrated an inability to adapt and conform to military life.

9.  On 27 March 1969, the appropriate authority approved the separation action and directed issuance of a DD Form 257A (General Discharge Certificate).  

10.  On 7 April 1969, the applicant was discharged accordingly.  He completed a total of 4 years, 1 month, and 12 days creditable active service.  His DD Form 214 shows he was discharged under the authority of Army Regulation 635-212 with SPN 46 indicating unsuitability due to apathy, defective attitude, and inability to expend effort constructively.

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

12.  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, for discharge due to unsuitability because of apathy by a displayed lack of appropriate interest and/or an inability to expend effort constructively.  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 sets forth the basic authority for the separation of enlisted personnel.

   a.  This regulation 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.  

   b.  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.

	c.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing his general under honorable conditions characterization of service was upgraded to honorable because he was suffering from PTSD.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case.  Therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of the Brotzman/Nelson memoranda.

4.  In view of the above, the applicant’s discharge should be upgraded 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.  showing the applicant was separated from the service on 7 April 1969 with an honorable characterization of service;

   b.  issuing him an Honorable Discharge Certificate, dated 7 April 1969, in lieu of the General Discharge Certificate on the same date now held by him; and

   c.  issuing him a new DD Form 214, effective 7 April 1969, showing his characterization of service as honorable.



      __________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)                                         AR20150005395



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150005395



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1