PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 December 2001   
	DOCKET NUMBER:   AR2001059759

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Regan K. Smith		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 that his discharge under other than honorable conditions be upgraded to general.

3.  The applicant states, in effect, that his discharge should be upgraded. 

4.  The applicant’s military records show that he was inducted on 22 November 1967.  While in basic training, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 21 December 1967 to 
8 January 1968.  His punishment consisted of a forfeiture of pay.    

5.  While in basic training, nonjudicial punishment was imposed against the applicant for being AWOL from 24 January 1968 to 25 January 1968.  His punishment consisted of restriction and extra duty.

6.  On 27 March 1968 the applicant was convicted by a special court-martial of being AWOL from 2 February 1968 to 26 February 1968 and from 2 March 1968 to 2 March 1968 (2 ½ hours) and wrongfully appropriating an automobile.  He was sentenced to be confined at hard labor for 6 months and to forfeit $63 pay per month for 6 months.  On 11 April 1968 the convening authority approved the sentence.  

7.  On 23 July 1968 the applicant was convicted by a special court-martial of being AWOL from 27 May 1968 to 2 July 1968.  He was sentenced to be confined at hard labor for 2 months and to forfeit $73 pay per month for 
2 months.  On 30 July 1968 the convening authority approved the sentence. 

8.  On 29 August 1968 the applicant was notified of his pending separation under the provisions of Army Regulation 635-212, for unfitness.

9.  After consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance before a board of officers and waived representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued.  He further acknowledged that if an undesirable discharge under conditions other than honorable were issued he may be ineligible to many or all benefits as a veteran under both Federal and State laws.   
  
10.  Medical evidence of record shows the applicant underwent a psychiatric evaluation on 10 September 1968 and was diagnosed with a passive aggressive personality, chronic, severe.

11.  On 19 September 1968 the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness and that he be furnished an undesirable discharge.  He cited the applicant’s acts of misconduct which resulted in two special court-martial convictions and 218 days of lost time.          

12.  On 20 September 1968 the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness.

13.  The separation authority approved the recommendation on 27 September 1968 and directed that the applicant be furnished an Undesirable Discharge Certificate.

14.  Accordingly, the applicant was discharged under other than honorable conditions on 4 October 1968 under the provisions of Army Regulation 635-212, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 3 months and 8 days of total active service and had 218 days of lost time due to AWOL and confinement.

15.  There is no evidence in the available records which shows that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate. 

17.  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 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.  It 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. 

CONCLUSIONS:

1.  The applicant’s administrative separation on 4 October 1968 was accomplished in accordance with regulations then in effect.

2.  However, during processing for discharge, the applicant was diagnosed with a passive aggressive personality disorder by a psychiatrist.

3.  In view of the foregoing, it appears that the above-mentioned memorandums should be applied to his case and his discharge should be upgraded.  

4.  The Board reviewed the applicant’s record of service which included two special court-martial convictions.  Since the Nelson Memorandum states that conviction by more than one special court-martial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge, the Board determined that a general discharge is appropriate in this case.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a general discharge under honorable conditions on 4 October 1968.

BOARD VOTE:  

SAC___  MDM____  RKS_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2001059759	
SUFFIX		
RECON		
DATE BOARDED	20011213	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19681004	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness due to frequent incidents of a discreditable nature with civil or military authorities	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.