BOARD DATE: 17 May 2011 DOCKET NUMBER: AR20100027239 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 his general discharge be upgraded to an honorable discharge. 2. He states, in effect, he wouldn't have gone absent without leave (AWOL) if his grandmother had not been dying and he was trying to get home to see her. His grandmother raised him and he wanted to be there. His record shows he was fine in his duties before this. After his grandmother passed, the next day he returned to Fort Meade, MD, and turned himself in. He feels his discharge should be upgraded because he served his country and he needs to have his record corrected. He is currently being diagnosed with post-traumatic stress disorder because of this. 3. He provides no additional evidence. 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. The applicant's military records show he enlisted in the Regular Army in pay grade E-1 on 27 June 1971, for 3 years. He completed training and was awarded military occupational specialty 11C (Armor Reconnaissance Specialist). He was advanced to pay grade E-3 on 5 November 1971. He served in Germany from 22 November 1971 through 1 March 1973. 3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the following: * 6 May 1972 - absenting himself from his appointed place of duty * 20 June 1972 - failing to obey a lawful regulation by carrying a switchblade 4. He was reported AWOL on 1 March 1973 and returned to military control on 20 March 1973. 5. On 19 April 1973, he again accepted NJP under Article 15, UCMJ, for being AWOL from 1 March to 20 March 1973. 6. He was again reported AWOL on 1 May 1973 and dropped from the rolls on 4 May 1973. He was returned to military control on or about 10 May 1973. 7. On 15 June 1973, he was picked up for hitchhiking and confined to the Davison County Jail, Nashville, TN. He was returned to military control at Fort Meade on 16 June 1973. 8. On 20 June 1973, he was convicted by a special court-martial of one specification of being AWOL from 1 to 10 May 1973. He was sentenced to confinement at hard labor for 2 months and a reduction to pay grade E-1. On 24 July 1973, the convening authority ordered his sentence duly executed. 9. A Mental Hygiene Consultation Service Certificate, dated 26 July 1973, shows he went AWOL approximately for 40 days trying to resolve differences between his wife and himself. His indecision and ambivalence contributed greatly to his ineffectiveness. The evaluating psychiatrist found no psychosis or neurosis or other disorders qualifying the applicant for disposition through medical channels. The evaluating psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, Unsuitability, for a character and behavior disorder. 10. On 9 August 1973, the U.S. Army Retraining Brigade unit commander recommended the applicant be discharged under paragraph 13-5, Army Regulation 635-200, for unsuitability. The unit commander stated that discharge for unfitness was not deemed appropriate due to his inability to assimilate to the military environment. The applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However, his inability to adapt to the military service and his character and behavior disorders rendered him unsuitable for further service. That was evidenced by his receipt of four adverse observation reports. 11. On 9 August 1973, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200, after consulting with counsel. He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf. He also acknowledged that he understood that he might be issued a general under honorable conditions discharge. He further acknowledged that he could be discharged under other than honorable conditions and furnished an undesirable discharge, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration. 12. On 9 August 1973, the Correctional Training Battalion Commander recommended approval of the applicant's separation. 13. On 13 August 1973, the appropriate authority approved the applicant's discharge and specified the issuance of a general discharge. 14. He was discharged from active duty in pay grade E-1 on 14 August 1973 under the provisions of Army Regulation 635-200, chapter 13, and issued a general discharge. He was credited with 1 year, 9 months, and 23 days of net active service and 117 days of lost time. 15. On 9 December 1975, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 13 applied to separation for unfitness and unsuitability. Paragraph 13-5b(3) provided for the separation of individuals found to be unsuitable for further military service. 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. 17. Army Regulation 635-200, paragraph 3-7a stated an honorable discharge was 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 clearly inappropriate. 18. 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 application 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant had one special court-martial and received three punishments under Article 15 for being AWOL. An evaluating psychiatrist recommended his separation under the provisions of Army Regulation 635-200 chapter 13, Unsuitability, for a character and behavior disorder. His unit commander stated the applicant's inability to adapt to the military service and his character and behavior disorders rendered him unsuitable for further service. Chapter 13 action was initiated against him and he was advised of his rights. Accordingly, he was discharged on 14 August 1974 with a general discharge. 2. Revised policy allowed for an upgrade of a discharge to fully honorable in cases where an individual was discharged based on the presence of a character and behavior or personality disorder. An upgrade was justified when there were no clear and demonstratable reasons, i.e., conviction by a general court-martial or by more than one special court-martial, which would justify a less than fully honorable discharge. 3. Based on the foregoing, it would now be in the interest of justice to upgrade his characterization of service 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: a. by showing the applicant was separated from the service on 14 August 1973, with an Honorable Discharge, under the provisions of Army Regulation 635-200, chapter 13; and b. by issuing him an Honorable Discharge Certificate from the United States Army, dated 14 August 1973, in lieu of the General Discharge Certificate of the same date now held by him. _______ _ 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) AR20100027239 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100027239 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1