IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150003933 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 IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150003933 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. amending the applicant's narrative reason for separation to show he was discharged under the provisions of Army Regulation 635-212 based on "Unsuitability" instead of "Unfitness"; b. issuing the applicant an Honorable Discharge Certificate, dated 9 June 1970, in lieu of the Under Other Than Honorable Conditions Discharge Certificate of the same date; and c. issuing the applicant 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. IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150003933 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, in effect, an affirmation of his under honorable conditions (general) discharge or an upgrade of his discharge to fully honorable. 2. The applicant states: a. He believes his original discharge is wrong. His grandmother raised him. When she died, he did not know how to handle the stress of losing her. b. He did not understand the significance of his actions. He felt his discharge was too harsh. The Army should have allowed him to stay in the military and make up the time. c. He was young and he did not realize how his discharge would affect his life. d. He needs medical care and is unable to receive it because he made poor choices as a young man. If he could do things differently, he would because he loves this country. 3. The applicant provides no additional documents. 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, at the age of 17, on 27 October 1967. On 16 June 1969, he was honorably discharged for immediate reenlistment. On 17 June 1969, he reenlisted for a period of 3 years. 3. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) during the following periods: * 22 July to 2 September 1969 * 8 September 1969 to 23 March 1970 * 14 April to 20 April 1970 4. His record contains a Fort Lewis Form 107 (Report of Psychiatric Evaluation), dated 13 April 1970. The examining psychiatrist diagnosed him with a "schizoid personality disorder, severe" and indicated that he believed the applicant would not adjust to further military service and further rehabilitative efforts would probably not be productive. 5. On 18 April 1970, the applicant’s unit commander notified the applicant that he was recommending the applicant's discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) based on unfitness and he advised the applicant of his rights. 6. On 27 April 1970, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to counsel. He also elected not to submit statements on his behalf. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if he were issued a general discharge. He also understood as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits under both Federal and State laws. 7. On 18 May 1970, the applicant's commander formally requested his discharge under the provisions of Army Regulation 635-212 for unfitness. His commander stated he considered a court-martial; however, in view of the applicant's poor attitude, unwillingness to serve, and the psychiatric report confirming the futility of further rehabilitative efforts, administrative elimination was more appropriate. a. The applicant’s commander further stated, he was recommending the applicant's discharge because he had repeated, lengthy periods of AWOL, excessive lost time, he resisted authority and regulations, and he had a pattern of behavior rendering him a complete loss to the service. b. The commander stated a discharge for unsuitability was not appropriate because the applicant's performance was characterized by a lack of appropriate interest manifested by a negative attitude towards the responsibilities required of a Soldier and his irresponsible attitude and lack of progress in the Army marked him as unfit for military service. c. The applicant's commander recommended an undesirable discharge. Additionally, the immediate commander supported the unit commander's recommendations and recommend approval of an undesirable discharge. 8. On 28 May 1970, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, unfitness and directed the applicant be furnished an undesirable discharge. 9. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 9 June 1970 under the provisions of Army Regulation 635-212. His characterization of service was listed as under conditions other than honorable. He was credited with completing a total of 3 months and 19 days of active service during the period under review and 1 year, 7 months and 20 days of prior active military service. His DD Form 214 also shows he had 247 days of lost time. 10. On 6 June 1977, the Army Discharge Review Board (ADRB) upgraded his characterization of service to “under honorable conditions (general).” 11. On 17 October 1978, the ADRB notified the applicant that the Board could not affirm his Department of Defense (DOD) Special Discharge Review Program (SDRP) upgraded discharge under the standards required by Public Law 95-126. The ADRB further informed him that this action did not change the discharge he now had, but might affect his ability to acquire VA benefits. 12. On 3 November 1978, the ADRB notified the applicant that the previous upgrading of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126. As a result of this review, the ADRB determined he did not qualify for an upgrade of his discharge under the new uniform standards for discharge review. Accordingly, his upgraded discharge under the DOD SDRP (Special) was not affirmed. 13. On 22 June 2016, the Chief, Behavioral Health Division, Office of the Surgeon General provided an advisory opinion for the applicant's case. The advisory official opined that, in the absence of behavioral health records from the applicant's time in service, it is unlikely he met the criteria for a significant mental illness that would mitigate the multiple periods of AWOL that led to his separation; however, the applicant met the criteria for an adjustment disorder or uncomplicated bereavement. The advisory official stated the applicant's honorable discharge from his previous tour of duty supports his contention that his misconduct was not characteristic of his military service. 14. The Army Review Boards Agency forwarded a copy of the advisory opinion to the applicant to allow him to provide comments. However, he did not respond within the allotted timeframe. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Section I of this regulation states that: an individual is subject to separation under the provisions of this regulation when one or more of the following conditions existed a. Soldiers would be separated for unfitness for frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming drugs or marijuana, an established pattern of shirking, an established pattern showing dishonorable failure to pay just debts, and/or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. b. Soldiers would be separated for unsuitability for inaptitude, apathy, alcoholism, enuresis, and/or character and behavior disorders. As determined by medical authority, character and behavior disorders and disorders of intelligence, except for combat exhaustion and other acute situational maladjustments. Discharges normally should not be accomplished for combat exhaustion and other acute situational maladjustments per se, but they may be accomplished for more basic underlying disorders of which the transient state is a manifestation. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based on the individual's entire record. 2. On 23 November 1972, Army Regulation 635-200 was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212. A Department of the Army (DA) message number 302221Z, dated March 1976, changed "character and behavior disorder" to "personality disorder" and Army Regulation 635-200 was revised on 1 December 1976. 3. 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, 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 (SPCM) was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 4. Army Regulation 635-200, currently in effect, paragraph 5-13, provides when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III. A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by general court-martial or convicted by more than one SPCM during the current enlistment. 5. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) paragraph 3-7a provides that 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. a. Paragraph 3-7a provides that 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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 6. In 1977, DOD was directed by the President to establish the SDRP. The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973, were eligible for an upgrade review under the SDRP. It further indicated that individuals who received an undesirable discharge during the Vietnam War era would have their discharges upgraded if they met one of the following criteria: wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service. 7. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to Department of Veteran Affairs (VA) benefits unless they had been entitled to such benefits before their SDRP review. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of an upgrade by the Presidential Memorandum of 19 January 1977 or the SDRP unless an eligibility determination is made under the published uniform standards and procedures. The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits. DISCUSSION: 1. The evidence of record shows the applicant was AWOL 247 days during his second period of service. 2. The applicant contends his grandmother died and he was unable to handle the stress of her death. However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge. 3. Based on the governing regulation in effect at the time of the applicant's discharge, Soldiers would be separated for unsuitability for inaptitude, apathy, alcoholism, enuresis, and/or character and behavior disorders. 4. The evidence of record shows the applicant was evaluated by a psychiatrist on 13 April 1970 and was diagnosed with a "schizoid personality disorder, severe," a behavior disorder. As such, it appears the applicant was inappropriately discharged under the provisions of Army Regulation 635-212 for unfitness instead of unsuitability. 5. The evidence shows the ADRB upgraded his characterization of service from under other than honorable conditions to general under the DOD SDRP. However, his upgrade was not affirmed. 6. The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders. Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200. 7. The Nelson Memorandum 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" that a fully honorable discharge should not be granted. 8. The applicant's military personnel record contains periods of AWOL for a period 247 days. However, his record of indiscipline does not meet the "clear and demonstrable reasons" that a fully honorable discharge should not be granted. 9. The Nelson Memorandum and current regulatory guidance would support upgrading his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003933 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003933 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2