PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000036056

	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. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

3.  The applicant states, in effect, that he had combat service and his ability to serve was impaired by his youth and immaturity.  He also claims that he has been a good citizen since his discharge.

4.  The applicant’s military records show that he enlisted in the Regular Army on 11 September 1969, at the age of 17, for 3 years.  He successfully completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT he was awarded military occupational specialty (MOS) 12A (Pioneer) and he was assigned overseas to Germany for his first permanent duty assignment.  

5.  The applicant’s disciplinary record includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on six separate occasions.  These actions resulted in his reduction to the lowest enlisted rank of private/E-1, on 31 May 1971.  There is no evidence or record to show that he was ever tried or convicted by court-martial or that he was guilty of any civil offense during his tenure in military service.

6.  The applicant accepted NJP on the following dates for the offenses indicated: 
14 November 1969, for failure to secure his foot locker; 4 December 1969, for committing an act prejudicial to good order and discipline by consuming a can of beer; 15 April 1971, for failure to go to his prescribed place of duty; 20 May 1971, for being disrespectful toward a superior noncommissioned officer; 29 May 1971, for possessing an illegal habit forming drug; and 1 June 1971, for having unauthorized Vietnamese females in his military vehicle and driving a military vehicle without a valid dispatch. 

7.  The applicant served in Germany for 5 months where he was promoted to specialist/E-4 (SP4), the highest rank he attained while on active duty, on 2 July 1970.  In July 1970, he was reassigned to combat duty in Vietnam, where he arrived for duty with the 511th Engineer Company, APO SF 96325, in September 1970. 

8.  On 12 June 1971, the applicant’s unit commander initiated separation proceedings against the applicant, under the provisions of Army Regulation 
635-212.  The unit commander indicated that the applicant’s discharge was being recommended due to his having character and behavior disorders and because of his repeatedly demonstrated disregard and apathy toward good order and discipline.  The unit commander cited several incidents of minor misconduct as the basis for taking the action.  There is no indication that the applicant was ever evaluated by a physician trained in psychiatry during the separation process. 
9.  In connection with his separation processing, the applicant completed an election of rights statement.  In this statement, he waived the following rights:  consideration of his case before a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.  This document also shows that the applicant was briefed on his rights by members of the chain of command and there was no indication that he ever consulted legal counsel to be briefed on the basis for the contemplated discharge action or its effects. 

10.  On 5 July 1971, the appropriate authority approved the applicant’s separation for unfitness, and directed he receive an UD.  In addition, the separation authority directed that the applicant be reassigned to the appropriate transfer station for separation.  Accordingly, on 15 July 1971, the applicant was discharged at Fort Lewis, Washington. 

11.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he completed his tour in Vietnam in July 1971 and that during his tenure in Vietnam he had participated in the Vietnam Counteroffensive, Phase VII and the Consolidation I campaigns of the conflict.  In addition, it documented that he had earned the Vietnam Service Medal (VSM) and the Republic of Vietnam Campaign Medal/with 60 device (RVNCM/w 60 device) for his service in Vietnam.

12.  On the date of his separation, 15 July 1971, the applicant was issued a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  This document shows that he completed a total of 1 year, 10 months, and 5 days of active military service and that he had earned the National Defense Service Medal (NDSM), the RVNCM/w 60 device, the VSM, 2 Overseas Bars, and the Sharpshooter Marksmanship Badge for the M-14 Rifle. 

13.  On 13 June 1972, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and determined that he was properly discharged. 

14.  Army Pamphlet 672-3 establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Paragraph 1-6 shows that the Republic of Vietnam Gallantry Cross/with Palm (RVNGC/w palm) was awarded to all Headquarters United States Army Vietnam and subordinate units, via DAGO 6, dated 1974, for service between 20 July 1965 and 28 March 1973.  Table 1 indicates that the 511th Engineer Company was awarded the Republic of Vietnam Civil Actions Honor Medal (RVNCAHM), via DAGO 6, dated 1974, for service between 3 May 1970 and 30 April 1971. 
15.  Department of the Army message #302221Z, March 1976 changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976.  These changes contained policy guidance in regard to the processing of separations based on personality disorders, and specifically established the requirement that a personality disorder diagnosis had to be made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum, dated 14 January 1977, better known as the Brotzman Memorandum, was promulgated. 

16.  The Brotzman Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on “personality disorders” or in retroactive cases of discharges based on “character and behavior disorders.”  A second memorandum, dated 
8 February 1978, 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.  A determination was made that conviction by a general court-martial or by more than one special court-martial would qualify as "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

17.  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.

18.  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.  

19.  Section 4 of DOD Directive 1332.28, 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.  During the review of this case, the Board found that the applicant’s record did not document two awards (the RVNCAHM and the RVNGC/w palm) to which he is entitled based on combat service in Vietnam.  Although these awards were authorized subsequent to the applicant’s separation, the Board concludes it would be appropriate to provide these awards to the applicant and to add them to his military service record at this time.

2.  After careful evaluation of the evidence or record and the independent evidence submitted by the applicant, the Board finds that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time, based on his extensive history of minor misconduct.  Further, given these factors, the Board concludes the applicant’s discharge was proper and equitable at the time it was issued.  

3.  However, while the Board does not condone the applicant’s misconduct, it did note his youth at the time of enlistment, his record of combat service, and the minor nature of most of the offenses.  While these factors alone would not warrant an upgrade to the discharge under review, when taken in concert with the application of the current discharge review standards, the Board finds these factors are partially mitigating in this case.  

4.  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, applicant’s record of service does not meet the criteria for an under honorable conditions discharge by current Army regulations.  Therefore, the Board finds relief is warranted in this case. 

5.  The Board noted that the ADRB review of this case was conducted prior to the publication of DOD Directive 1332.28, which established current Discharge Review Board Procedures and Standards.  In the opinion of this Board, had the ADRB reviewed the applicant’s case subsequent to the publication of this Directive, it is reasonable to presume that they would have upgraded the discharge based on the application of the current regulation for discharges because of a personality disorder.

6.  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, an 
UD 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.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned earned the Republic of Vietnam Civil Actions Honor Medal and the Republic of Vietnam Gallantry 
Cross/ with Palm; and, he be provided the corresponding medal sets.

2.  That the Department of the Army issue to the individual concerned an Honorable Discharge Certificate from the Regular Army, dated 15 July 1971, in lieu of the UD of the same date now held by him.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___ew___  ___jpi___  ___cmf__  DENY APPLICATION

		____Calvin M. Fowler_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000036056	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/07/15	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENIED	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.