PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 June 2003
	DOCKET NUMBER:   AR2003084674

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Frank C. Jones		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 general discharge be upgraded to honorable.

3.  The applicant states that after his discharge he joined the French Army and served until he was honorably discharged.  He goes on to state that had he been given a chance to show evidence of his soldiering abilities, he would not have been given a general discharge.  In support of his application he submits his (un-translated) honorable discharge from the French Army and a copy of his certificate of completion of parachute training. 

4.  The applicant’s military records show that he enlisted on 1 July 1964 for a period of 3 years under the airborne enlistment option.  He completed his basic combat training at Fort Dix, New Jersey and was transferred to Fort Jackson, South Carolina, to undergo the first phase of his advanced individual training (AIT).  

5.  On 22 October 1964, nonjudicial punishment (NJP) was imposed against him for failure to maintain his personal clothing.  His punishment consisted of restriction and extra duty.

6.  On 2 November 1964, NJP was imposed against him for failure to obey a lawful order from his first sergeant to get a haircut.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

7.  He completed his final phase of AIT at Fort Gordon, Georgia, completed airborne training at Fort Benning, Georgia, and was then transferred to Fort Bragg, North Carolina, for duty as a lineman with the 7th Special Forces Group.

8.  On 30 June 1965, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 1 July 1965 for a period of 3 years and his present duty assignment.  He indicated on his Statement of Understanding of Enlistment Promises (3AA Form 296) that he was only promised reenlistment for his present duty assignment.

9.  On 9 September 1965, NJP was imposed against him for being absent without leave (AWOL) from 8 September to 9 September 1965.  His punishment consisted of extra duty and restriction.

10.  On 4 October 1965, he was convicted by a special court-martial of two specifications of breaking restriction, being AWOL from 15 to 17 September 1965, and breaking arrest.  He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1 and a forfeiture of pay.  

11.  On 18 October 1965, the State of North Carolina issued a detainer on the applicant for failure to appear in court for the felony charge of assault with a deadly weapon with intent to kill.  The county sheriff requested that the applicant be turned over to his office upon release from the stockade.

12.  The applicant underwent a psychiatric evaluation on 18 October 1965 and the examining psychiatrist opined that the applicant suffered from emotional immaturity, that he was uncooperative, immature and unable to adjust to Army life.  He recommended that the applicant be discharged for unsuitability due to a personality disorder.

13.  On 27 October 1965, the applicant was notified that he was being recommend to appear before a board of officers to determine if he should be discharged for unfitness under the provisions of Army Regulation 635-209, due to a personality disorder.

14.  After consulting with counsel, he exercised his right to appear before a board of officers.  The applicant appeared before a board of officers on 10 November 1965, represented by counsel.  After hearing testimony and reviewing the evidence presented, the board found that the applicant was unsuitable for further military service because of a character and behavior disorder and recommended that he be discharged under honorable conditions for unsuitability.

15.  On 18 November 1965, the special court-martial convening authority remitted the unexecuted portion of the sentence as pertained to confinement and forfeitures.

16.  Accordingly, he was discharged under honorable conditions on 24 November 1965, under the provisions of Army Regulation 635-209, due to a character and behavior disorder.  He had served 1 year, 3 months and 16 days of total active service and had 39 days of lost time due to AWOL and confinement.

17.  He immediately applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 21 February 1966, the ADRB determined that he had been properly discharged and denied his appeal.

18.  He applied to this Board and on 11 December 1968, this Board also denied his appeal.

19.  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 a 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 upgrades 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 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 evidence of records shows that the applicant’s administrative separation on 8 July 1971 was accomplished in accordance with regulations then in effect.

2.  However, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently.

3.  Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

4.  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 was separated from the service with an Honorable Discharge Certificate on 24 November 1965.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 24 November 1965, in lieu of the general discharge of the same date held by him.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__mkp___  ___reb __  __fcj____  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2003084674	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/06/24	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1965/11/24	
DISCHARGE AUTHORITY	AR635-209 	
DISCHARGE REASON	UNSUIT	
BOARD DECISION	Deny (DASA is granting)	
REVIEW AUTHORITY		
ISSUES         1.  547	144.4000/A40.00	
2.		
3.		
4.		
5.		
6.