PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR2000035700

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

3.  The applicant states, in effect, that in nearly 3 years of service he had only one problem with his conduct and that was related to his having marital problems which resulted in his going AWOL.  Even then he indicates that he voluntarily returned to military control and admits that this misconduct was the result of his lapse in judgement.  He has included a copy of his Bronze Star Citation, a Letter of Commendation, and his Good Conduct Medal Orders in support of his application. 

4.  Counsel for the applicant state, in effect, that the applicant did not receive a proper psychiatric evaluation prior to his discharge and the record is unclear on how a personality disorder was diagnosed.  In addition, they claim that under current standards this discharge by reason of personality disorder requires an HD be granted.  

5.  The applicant’s military records show that on 29 July 1970, while assigned to Fort Knox, Kentucky he reenlisted for 6 years, which is the period of service under review.  At the time of reenlistment he had already completed 2 years, 
11 months, and 22 days of honorable active service and he held the rank of specialist/E-4.  

6.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on 28 July 1970, at the conclusion of his first period of service, shows that he had completed a combat tour in Vietnam and that he had earned the National Defense Service Medal, the Bronze Star Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal.  

7.  On 9 September 1970, the applicant was awarded the Good Conduct Medal for his service between 10 September 1968 and 9 September 1970.  The applicant’s disciplinary history for the enlistment under review includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions.  

8.  The NJP actions accepted by the applicant are as follows:  on 29 June 1971 for missing morning formation; the second on 15 November 1971, for two specifications of being AWOL, from 27 October to 8 November 1971 and from 
8 to 9 November 1971, and the third for failing to be at his prescribed place of duty on 24 November 1971, which resulted in his being reduced to the rank of private/E-2.  

9.  On 8 December 1971, the applicant underwent a physical examination by competent medical authority.  This examination included a statement from the medical doctor conducting the evaluation which indicated that a psychiatrist was not available at Fort Knox and that he conducted the routine psychiatric portion of the examination.  He indicated that he found that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  

10.  On 17 December 1971, the applicant’s unit commander notified the applicant of the intent to consider his elimination, under the provisions of Army Regulation 635-212,  based on his unsuitability because of his character and behavior disorder.  This recommendation was made by the unit commander without the benefit of a formal psychiatric evaluation.  

11.  On 5 January 1971, the applicant consulted defense counsel and after being advised of the basis for the contemplated separation and its effects, completed his election of rights.  He elected to waive his right to consideration of his case by a board of officers and to a personal appearance before a board of officers.  In addition, he waived his right to appointed military counsel and elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the applicant’s separation and directed that he be issued a GD.  Accordingly, on 19 January 1972, he was discharged after completing 1 year, 5 months, and 9 days of his current enlistment, a total of 4 years, 5 months, and 1 day of active military service, and having had accrued 13 days of time lost due to AWOL.

13.  There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB), within the 15 year statute of limitations, to request an upgrade of his discharge.

14.  Department of the Army message #302221Z, March 1976 changed “character and behavior disorder” to “personality disorder”.  Army Regulation 635-200 was revised on 1 December 1976.  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. 

15.  The Brotzman Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  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.

16.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides, in pertinent part, when separation is because of a personality disorder, the service of a soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one special court-martial during the current enlistment.

17.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, establishes uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code, section 1553, and applies to the Office of the Secretary of Defense and the Military Departments.  Section 4 of the that directive sets forth the objectives for discharge review.  It provides that a discharge shall be deemed proper unless it is determined that a change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.  Furthermore, a discharge shall be deemed to be equitable unless there is a substantial doubt the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

CONCLUSIONS:

1.  The character and behavior disorder determination in this case was made by the applicant’s unit commander, without the benefit of a psychiatric evaluation from a physician trained in psychiatry.  Further, the applicant’s record of service does not meet the criteria for an under honorable conditions discharge by current Army regulations.  Had the ADRB reviewed this discharge under DOD Directive 1332.28, it is reasonable to presume that it would have been upgraded based on the application of the current regulation for discharges because of a personality disorder.

2.  Although DOD Directive 1332.28 provides policy for review of discharges for Discharge Review Boards, it appears appropriate that this Board adopt and apply the standards set forth in this Directive for this particular case.  In view of these current standards for discharges issued because of a personality disorder, a GD was unduly harsh and unjust in this case.  Therefore, the Board determined It would now be appropriate to correct this inequity and issue the applicant an HD.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That the Department of the Army issue to the individual concerned an Honorable Discharge Certificate from the Army of the United States, dated 19 January 1972, in lieu of the discharge under honorable conditions of the same date now held by him.

BOARD VOTE:  

___ewl __  __klw___  ___eja __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Ernest J. Arledge, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035700	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1972/01/19	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Character and Behavior Disorder 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.