BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150009885 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: 17 May 2016 DOCKET NUMBER: AR20150009885 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: a. voiding his current DD Form 214 showing his character of service as under honorable conditions; b. issuing him a new DD Form 214 showing his character of service as honorable; and c. issuing him an Honorable Discharge Certificate, dated 24 April 1961, in lieu of the General Discharge Certificate he currently holds. ___________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: 17 May 2016 DOCKET NUMBER: AR20150009885 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 honorable. 2. The applicant states he wishes to have his general discharge under honorable conditions upgraded to honorable. 3. The applicant 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 enlisted in the Regular Army on 26 October 1960 for a period of 3 years. 3. On 17 January 1961, he was convicted by a summary court-martial of being absent without leave (AWOL) from 12 January 1961 to 17 January 1961. He was sentenced to confinement for 1 month and forfeiture of $50.00 pay per month for 1 month. On 17 January 1961, the convening authority approved the sentence, but suspended confinement until 17 February 1961. 4. On 23 February 1961, he underwent a psychiatric evaluation and was diagnosed with an inadequate personality, manifested by repeated periods of AWOL, emotional dependency on parents, and a history of inability to deal adequately with minimal stress. 5. On 25 February 1961, he was convicted by a special court-martial of being AWOL from 3 February 1961 to 10 February 1961. He was sentenced to confinement for 6 months and forfeiture of $50.00 pay per month for 6 months. On 25 February 1961, the convening authority approved the sentence. 6. Discharge proceedings were initiated against him on 13 April 1961 for unsuitability under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability). The unit commander cited the applicant's demonstrated tendency of chronic AWOL. 7. He was counseled and advised of the basis for the action recommended under the provisions of Army Regulation 635-209. He declined counsel and a hearing by a board of officers. He elected not to make a statement in his own behalf. 8. The separation authority approved the recommendation for separation and directed the issuance of a general discharge. 9. On 24 April 1961, he was discharged under honorable conditions (general) for unsuitability under the provisions of Army Regulation 635-209 and assigned separation program number (SPN) 264 (unsuitability due to character and behaviors disorders). He completed 3 months and 12 days of creditable active service with 76 days of lost time due to AWOL. 10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action would be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must be a psychiatrist, if one were available. An honorable or general discharge was considered appropriate. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), which superseded Army Regulation 635-209, 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, 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. 3. A second Department of the Army memorandum, dated 8 February 1978, better known as the Nelson memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify the 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. A conviction by general court-martial or by more than one special court-martial was determined to be a "clear and demonstrable reason" which would justify a less than fully honorable discharge. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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. DISCUSSION: 1. The evidence of record shows the applicant was diagnosed with a character and behavior disorder (also classified as a personality disorder) by a psychiatrist in February 1961. The separation authority approved his discharge under honorable conditions (general) for unsuitability due to a character and behavior disorder. He was discharged accordingly effective 24 April 1961. 2. Subsequent to the applicant's discharge, the separations regulation was changed following settlement of a civil suit. In view of the change, the general discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge by reason of unsuitability for personality disorder which subsequently became effective. Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant should receive an honorable discharge consistent with these standards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009885 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2