BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001564 BOARD VOTE: ____x_____ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001564 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 by re-issuing the applicant's DD Form 214 for the period ending 5 September 1964 to show the characterization of service as "honorable." ___________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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001564 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 an upgrade of his general discharge under honorable conditions discharge to an honorable discharge. 2. The applicant states he did not merit a general discharge under honorable conditions. His unit had the champion basketball team and, for 2 years, he had been a starter on that team. He asserts the reason he was given a general discharge was because he refused to play his last season as a starting forward. He was on temporary duty (TDY) at the 2nd General Hospital, and had been in this status for part of his second year on the team. Because the two units (his unit of assignment and his TDY unit) were not on the same page, there were times he had to work 24-hour shifts two times a week in an intensive care unit. His problems started when he told his team he would not play his last season. He was admonished nearly every day and given extra duties. He fought back and Major (MAJ) W told him he could help. MAJ W had him fill out some paperwork, and, in about 8 weeks, he was on his way home and back to college. 3. The applicant provides no additional documentary 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 enlisted in the Regular Army on 15 March 1962. His military occupational specialty was 911.10 (Medical Specialist). He was assigned to Germany after completing initial training. 3. While in Germany, he accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) on two occasions between June and July 1963, as follows: * 19 June 1963 – for attempting to evade apprehension by the military police and being absent without leave * 26 July 1963 – disorderly in the billets and use of obscene language 4. On 19 August 1963, his commander initiated a bar to reenlistment action against him based on the aforementioned NJP and because of a counseling given in April 1963 for "sloppy room and appearance." The commander listed his conduct rating as "unsatisfactory" and his efficiency was "fair." The bar to reenlistment was approved on 8 September 1963. 5. On 28 April 1964, he was referred for a psychiatric evaluation because he was being considered for elimination from the Army. a. The basis given was that the applicant had displayed belligerence and moodiness. He was brought to the Emergency Room after refusing to go to work and he appeared withdrawn. The applicant indicated he was experiencing some personal problems and affirmed he was periodically moody, resentful, and was having difficulty adjusting to the authoritative structure of the Army. b. He was evaluated by Captain (CPT) JL, Medical Corps, who found his personality structure revealed strong schizoid traits of seclusiveness, fantasizing, and a tendency to withdraw from interpersonal relationships. Dr. JL stated the applicant's overall integrative capacity and stress tolerance seemed rather fragile. The applicant's misbehavior appeared to be based on character defects not subject to immediate correction. He was psychiatrically cleared for administrative purposes. 6. He again accepted NJP on 8 June 1964 for dereliction of duty in that he fell asleep while on guard. 7. On 25 June 1964, he was tried by a summary court-martial for breaking restriction. Consistent with his plea, he was found guilty and was sentenced to forfeit $96 per month for 1 month. The convening authority approved the findings and sentence on 25 June 1964. 8. He accepted NJP on 18 July 1964 for failing to obey the order of First Sergeant RWM and Master Sergeant JW to remain in a specified location until relieved. 9. On 24 July 1964, he received a second psychiatric evaluation in connection with contemplated elimination action. The report showed he displayed continued defiant attitudes and had committed disciplinary infractions. There were no psychiatric reasons identified that would change the results of the original psychiatric evaluation conducted on 28 April 1964. 10. On 5 August 1964, his commander recommended him for elimination under the provisions of Army Regulation (AR) 635-209 (Personnel Separations – Discharge – Unsuitability) based on his summary court-martial conviction, four NJP actions, and multiple counseling statements for minor infractions. His conduct and efficiency ratings were unsatisfactory. 11. In an undated affidavit witnessed by his commander, the applicant affirmed the following, he: * was counseled by his commander as to the basis for the contemplated elimination action * had been furnished copies of his commander's report and associated statements * declined counsel and waived his right to have his case heard by a board of officers * could receive an under other than honorable conditions character of service * did not desire to submit any statements in his own behalf 12. On 18 August 1964, the separation authority approved the commander's recommendation and directed the applicant receive a general discharge under honorable conditions. He was discharged accordingly on 5 September 1964. 13. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 5 months, and 21 days of net active service. The authority was AR 635-209, the Separation Program Number (SPN) was 264 (character and behavior disorders), and his character of service was under honorable conditions. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14). 14. Because of the absence of records, it is not possible to confirm whether he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 635-209, in effect at the time, prescribed policies and procedures for the separation of Soldiers who were considered unsuitable for continue military service. a. A Soldier was separated under this provision when it was clearly established the Soldier was unlikely to develop sufficiently to participate in further military training/become a satisfactory Soldier, or had a psychiatric or physical condition that did not warrant a discharge for physical disability. b. Separation due to character and behavior disorders pertained to Soldiers with character and behavior disorders, disorders of intelligence, and transient personality disorders due to acute or special stress as defined in Special Regulation 40-1025-2 (Joint Armed Forces Nomenclature and Method of Recording Psychiatric Conditions – 1949). c. A Soldier who was discharged for unsuitability was to be given either an honorable or a general characterization of service, as warranted by the Soldier's records. Such discharge was to be effected when it had been determined an individual was unsuitable for further military service because of inaptitude. This applied to individuals who were best described as inapt, due to lack of general adaptability, want of readiness or skill, un-handiness, or inability to learn. 2. Special Regulation 40-1025-2, in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 3. AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) superseded AR 635-209 and AR 635-208 (Unfitness) effective 15 July 1966. It set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records 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. b. 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 discharge upgrades based on personality disorders. c. 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 an 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 a 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. 5. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in paragraph 3-7a, an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 6. AR 635-5 (Personnel Separations – Separation Forms), in effect at the time, prescribed the specific authorities (statutory or other directives), the reasons for separating Soldiers from active duty, and the SPNs to be entered on the DD Form 214. SPN code 264 applied to Soldiers being discharged for unsuitability due to character and behavior disorders under the provisions first of AR 635-209, then for AR 635-212, once it became effective. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant’s commander determined he was unsuitable for further military service based on behavior which reflected a character and/or behavior disorder. He had frequent instances of misconduct, unsatisfactory conduct and efficiency ratings, and he did not respond to counseling. Accordingly, his chain of command initiated separation against him. 2. The evidence of record indicates his separation action was accomplished in compliance with applicable regulations, as were in effect at the time. In addition, neither the available evidence, nor the applicant, given any indication there were procedural errors that would have jeopardized his rights. Barring evidence to the contrary, his discharge proceedings are presumed to have been conducted in accordance with applicable law and regulations at the time and his rights were fully protected. 3. The applicant was separated in 1964. In 1976, new guidance, in the form of the Brotzman and Nelson memoranda, stipulated that when a Soldier received a personality disorder diagnosis, an upgrade of a discharge to honorable was justified. The exception were cases where there were "clear and demonstrable reasons" why an honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial were considered to constitute "clear and demonstrable reasons" which would justify a less than honorable discharge. 4. Although the Brotzman and Nelson memoranda changed Army separation policy well after the applicant's date of separation, the fact he was discharged because of a character and/or behavior disorder appears to fit the criteria spelled out in these memoranda. Additionally, while the applicant committed multiple minor infractions, he was never convicted at a venue any higher than a summary court-martial. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001564 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001564 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2