BOARD DATE: 2 February 2012 DOCKET NUMBER: AR20110014536 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 to an honorable discharge. 2. The applicant states he was too young and immature to understand the ramifications and negative impact that an under honorable conditions discharge would have on him in civilian life. a. His discharge has had an adverse impact regarding his efforts in seeking employment and interacting with other honorably discharged veterans. b. His overall performance of duty should entitle him to an honorable discharge. He adds his research shows he is entitled to an honorable discharge. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 (RA) on 15 December 1967 for a period of 2 years. He was 18 years of age. Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to the 3rd Battalion, 187th Infantry in Vietnam from 24 July 1968 to 6 May 1969. It also shows in: a. item 33 (Appointments and Reductions) that during his overseas service in Vietnam the applicant was advanced to: * private first class (PFC)/E-3 on 26 July 1968 * specialist four (SP4)/E-4 on 6 December 1968 b. item 41 (Awards and Decorations) the: * Army Commendation Medal with "V" Device * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Parachutist Badge * Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Machinegun (M-60) Bars * Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar 4. Special Court-Martial Order Number 11, issued by Headquarters, 3rd Battalion, 187th Airborne Infantry, dated 13 March 1969, shows the applicant was tried at a special court-martial. a. He was found guilty of the charges and specifications of: * on 10 February 1969, willfully disobeying a lawful command from his superior commissioned officer * on 9 February 1969, wrongfully and willfully discharging a firearm in the barracks under circumstances such as to endanger human life * on 9 February 1969, wrongfully communicating a threat to a commissioned officer b. On 5 March 1969, he was sentenced to confinement at hard labor for 6 months, forfeiture of $68.00 pay per month for 6 months, and reduction to private (PV1)/E-1. c. On 13 March 1969, the convening authority approved the sentence and ordered it duly executed; however, the portion adjudging confinement at hard labor for 6 months was suspended for a period of 6 months. 5. On 15 March 1969, the applicant's commander notified the applicant of his intention to recommend his separation from the U.S. Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6b(2), for unsuitability based on his inability to adapt to military life. The commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation action and of his rights. 6. On 15 March 1969, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action. a. He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. b. He was also advised that he may be discharged under conditions other than honorable, that he may be deprived of many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under conditions other than honorable. c. The applicant waived consideration of his case by a board of officers; waived personal appearance before a board of officers; elected not to submit statements in his own behalf; and waived representation by counsel. 7. A Certificate by the battalion surgeon, dated 18 March 1969, shows the applicant was referred for medical evaluation for the purpose of elimination under the provisions of Army Regulation 635-212 because of his repeated misbehavior. The battalion surgeon stated the applicant was diagnosed by two different psychiatrists on two separate occasions with a character disorder; specifically, an inadequate personality. a. He added he had observed the applicant for 5 months and stated with confidence that the applicant was incapable of adjusting to Army life. He noted that no significant organic basis was ever found for any of the applicant's medical complaints. b. He recommended elimination of the applicant from the Service for reasons of unsuitability in accordance with Army Regulation 635-212. 8. On 24 March 1969, the applicant's commander recommended the applicant be separated from the service for unsuitability with a DD Form 257A (General Discharge Certificate). 9. On 21 April 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the issuance of a General Discharge Certificate. He also directed all administrative actions required to effect his discharge be accomplished without delay. 10. On 10 May 1969, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-212, with a Separation Program Number (SPN) of 264 for unsuitability, character and behavioral disorder. He completed 1 year, 4 months, and 26 days of total active service, including 9 months and 17 days of foreign service. 11. A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). 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. 13. Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel. This regulation was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were 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. 14. 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 applicant contends that, through research that he has conducted, his discharge should be upgraded to fully honorable based on his overall record of service and he should be entitled to the benefits of an honorable discharge. 2. Records show the applicant enlisted in the RA on 15 December 1967 and his acts of indiscipline began in February 1969 while he was serving in Vietnam. 3. Records show the applicant was examined by two psychiatrists and a battalion surgeon while he was serving in Vietnam to ensure he was mentally fit for discharge. The battalion surgeon stated he had observed the applicant for 5 months and rendered a medical opinion that the applicant was incapable of adjusting to Army life. He found no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels. Accordingly, he recommended elimination of the applicant from the Service for reasons of unsuitability in accordance with Army Regulation 635-212. 4. The applicant's separation under the provisions of Army Regulation 635-212 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged. 5. It is noted that prior to the applicant's acts of indiscipline for which he received a special court-martial, he had served more than 6 months in Vietnam and he was advanced in grade twice. In addition, he was awarded the Army Commendation Medal with "V" Device for his heroism while serving in Vietnam. 6. The evidence of record further shows the historically significant Brotzman-Nelson decisions imposed specific criteria to be applied to discharges for character and behavioral disorders. Therefore, in view of the foregoing, the applicant's military service record should be corrected to show he was honorably discharged, effective 10 May 1969, under the extraordinary provisions of Department of the Army Memorandum, dated 8 February 1978. 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 by: a. issuing him a DD Form 256A (Honorable Discharge Certificate), dated 10 May 1969, in lieu of the General Discharge Certificate of the same date now held by the applicant; and b. issuing him a new DD Form 214 reflecting the above corrections. ________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) AR20110014536 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110014536 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1