IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150012031 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: 14 July 2016 DOCKET NUMBER: AR20150012031 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: * showing the individual concerned was issued an honorable discharge on 10 August 1971 * issuing him an Honorable Discharge Certificate, in the rank/grade of PV2/E-2 in lieu of the General Discharge Certificate he currently holds * issuing him a new DD Form 214 reflecting the above corrections (honorable discharge, rank/grade of PV2/E-2, date of rank 30 January 1971) ____________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: 14 July 2016 DOCKET NUMBER: AR20150012031 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 under honorable conditions (general) discharge. 2. The applicant states he underwent extreme prejudice and he was denied a transfer request at the time. He wanted to transfer to a different duty station but he was denied. He faced hostilities and was accused of mail theft. 3. The applicant does not provide any 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 28 March 1970 and he held military occupational specialty 13A (Field Artillery Gunner). He served in Germany from on or about 13 August 1970 to March 1971. 3. His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 13 October 1970, dereliction in the performance of duties on two separate occasions * 26 January 1971, being disrespectful in language toward a noncommissioned officer * 27 May 1971, being absent from his appointed place of duty without authority and failing to go at the time prescribed to his appointed place of duty 4. On 30 December 1970, consistent with his plea, he was convicted by a summary court-martial of stealing certain mail matter, to wit packages addressed to another individual. The court sentenced him to reduction to the lowest enlisted grade of private/E-1, a forfeiture of pay, and restriction and extra duty. However, he was promoted to private (PV2)/E-2 in January 1971. 5. On 25 February 1971, he underwent a psychiatric evaluation after having been command-referred. There was no psychosis or neurosis evident during his evaluation. He was described as limited in social skills and cleared psychiatrically for administrative actions deemed appropriate by his chain of command. 6. On 8 June 1971, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) because of unsuitability. The commander advised him of his rights. 7. The applicant acknowledged receipt of the separation notification for unsuitability. He consulted with legal counsel and he was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him and as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 8. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unsuitability. The immediate commander stated the discharge was recommended because of habits and traits of character manifested by repeated commission of petty offenses and the inability to adapt to military life. He added: * the applicant had been transferred to Troop D, 1st Squadron, 14th Cavalry for rehabilitation but was constantly absent from formation * he had a bad attitude toward military service and lacked appropriate military decorum and appearance * attempts to communicate with him yielded negative results as his resentment, disrespectfulness, and hatred of superiors and authority made it difficult * the applicant’s extreme dislike of the military made it almost impossible to keep him under supervision 9. On 29 July 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed that he be furnished a General Discharge Certificate. The applicant was accordingly discharged on 10 August 1971. 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged in the rank of PV2, under the provisions of Army Regulation 635-212 on 9 December 1970 by reason of unsuitability with a separation program number (SPN) of 264 (unsuitability, character and behavior disorder). His character of service was under honorable conditions (general). He completed 1 year, 4 months, and 13 days of total active service. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the requirements and procedures for administrative discharge of enlisted personnel. This regulation provided for separation due to inaptitude, character and behavior disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts). The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was revised on 1 December 1976 following settlement of a civil suit. The type of discharge and the character of service were 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. 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. 3. 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. 4. Army Regulation 635-200, paragraph 3-7a, states 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's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His record of service included three instances of NJP and one court-martial conviction. The applicant's commander cited the applicant's habits and traits of character manifested by a history of repeated commission of petty offenses and his inability to adapt to military life as the bases for the recommendation for discharge. 2. His behavior necessitated his command’s referral for a psychiatric evaluation. He was not diagnosed with any behavioral health issues and he was psychiatrically cleared for administrative actions deemed appropriate by his chain of command. Accordingly, his immediate commander initiated separation action against him for unsuitability (character and behavior disorder). 3. His administrative separation was accomplished in compliance with applicable regulations at the time. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 4. However, the law and regulation have since changed. It now appears the applicant's overall service record and his diagnosed character and behavior disorder (now known as personality disorder) warrants upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda. 5. His records should be corrected by issuing him an honorable discharge, in the rank/grade of private/E-2 and with a date of rank of 30 January 1971. Additionally, he should be issued an Honorable Discharge Certificate in lieu of a General Discharge Certificate and a new DD Form 214 reflecting the above corrections. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012031 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012031 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2