BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160000725 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: 21 November 2017 DOCKET NUMBER: AR20160000725 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 amending his records as follows: * showing the individual concerned was honorably discharged on 16 January 1962 * issuing him an Honorable Discharge Certificate, dated 16 January 1962, in lieu of the General Discharge Certificate of the same date now held by him * 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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160000725 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: a. The character of service listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) currently states "under honorable conditions." Before he passes away, he would like an "honorable" discharge. He was involuntarily discharged because his wife at the time wanted him back in Illinois with her and their one-year-old son. At the time she wrote numerous letters to his commander saying she was enduring a hardship because he wasn’t there. He wanted to stay in the Army, but his commander was tired of receiving letters and phone calls from his wife so he told him it was time for him to leave the Army and go back to Illinois. b. The sergeant who filled out his DD Form 214 filled it out within minutes and told him his discharge was considered honorable. His daughter was a naval officer and his son recently retired as a master sergeant. They both told him he needed to request an upgrade of his discharge. He is not seeking monetary or medical benefits. For him, it is a sense of pride and honor. His days in the Army were the proudest days of his life and he regrets being forced out. His wife at the time was not allowed to be stationed with him. That was something he accepted. Unfortunately, his commanding officer decided he needed to be with her back in Illinois. c. When he was out-processing, the sergeant who filled out the DD Form 214 did it within minutes and said his character of service was honorable. It wasn't until many years later when his son informed him that his character of service needed to be upgraded from under honorable conditions to just 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 24 April 1961 and he held military occupational specialty 133.00 (Armor Intelligence Specialist). He was assigned to the 2nd Battle Group, 9th Infantry, Fort Benning, GA. 3. On 26 June 1961, he was granted a waiver for fraudulent entry by Headquarters, Fifth U.S. Army. He entered the military as a private/E-1 and he had not advanced beyond this grade. 4. The applicant's DA Form 24 (Service Record) shows he was reported absent without leave (AWOL) from 12 August to 7 October 1961 and he was in confinement from 8 to 22 October 1961. 5. On 9 October 1961, while confined, he underwent a psychiatric evaluation. His records contain a Psychiatric Evaluation Summary that shows he was interviewed at the Post Stockade. It states: a. In June 1961 he received a summary court martial for fraudulent enlistment, but the case was waived. While stationed at Fort Benning, GA, he went AWOL from 12 August to 8 October 1961 (56 days). At the time, the applicant stated he went AWOL because he was unable to get a hardship discharge. He applied for a hardship discharge because his wife had been ill since the birth of their baby last March and he was unable to meet his financial responsibilities. He stated he had no motivation for continued service and would accept any type of discharge. b. His records revealed a lifelong pattern of poor adaptability and unconventional behavior. His judgement was poor and it appeared he often acted with excitability and ineffectiveness when confronted with stress. Although he solicited no psychotic or psychoneurotic symptomatology, he did manifest a deep-seated character and personality disorder. His diagnosis was "passive aggressive reaction with evidence of emotional instability." c. The applicant's condition was not amenable to short-term treatment or training and he would not be benefited by hospitalization; therefore, no further attempt at rehabilitation should be made since it was believed he could not be rehabilitated to the extent that he would become a satisfactory Soldier. The examiner recommended the applicant’s administrative separation and opined the applicant was free from mental defects, disease, or derangement, and he was able to distinguish right from wrong and adhere to the right. He had no disability, mental or physical, that warranted separation under medical regulations. 6. The applicant's records contain multiple sworn statements in relation to a military police investigation for bribery against the applicant. Several individuals signed sworn statements indicating the applicant attempted to bribe the clerk at the Special Processing Detachment, Fort Sheridan, IL, with money in order to get out. However, the disposition of the charges is unknown. 7. The applicant's DA Form 24 shows the applicant departed his unit in an AWOL status on 2 December 1961 and he was apprehended by civil authorities in North Lake, IL, on 27 December 1961. He was placed in military confinement from 28 December 1961 through 15 January 1962. 8. The commander's notification of separation memorandum is not available for review with this case. However, it appears on or about 12 January 1962, the applicant's immediate commander notified the applicant of his intent to process him for elimination under the provisions of Army Regulation 635-208 (Unfitness). 9. On 12 January 1962, the applicant acknowledged receipt of the separation notification. He acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel. He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf. He indicated he fully understood that if he were separated with an under other than honorable conditions discharge, he might be deprived of many rights and benefits as a veteran under both Federal and State laws, and that he might encounter some prejudice in civilian life. 10. On 15 January 1962, the applicant's immediate commander submitted a recommendation for discharge under the provisions of Army Regulation 635-208. He stated: a. Efforts toward rehabilitation of the applicant were considered to be impractical at this time. The applicant was assigned to this unit from a "Dropped from Rolls" status on 8 October 1961 and was confined until 23 October 1961. He went AWOL again for a period of 26 days and was confined on 28 December 1961 where he was at the present time. b. The applicant was originally recommended for separation under the provisions of Army Regulation 635-209 (Unsuitability). However, prior to his date of discharge he came under investigation for allegedly wrongfully and unlawfully paying a sum of money for the special handling of his potential discharge from the Army. He was presently pending trial by a special court-martial for his latest period of AWOL and for the previously-cited investigation. The unsatisfactory conduct and efficiency ratings were for the periods from 14 August to 11 September 1961 and from 8 October 1961 to the present. All other ratings were excellent. c. He had been AWOL on two occasions for 57 days and 26 days respectively. He had also been confined for 15 days prior to entering confinement in the Post Stockade, Fort Sheridan, IL, on 28 December 1961. d. While in a duty status with this unit, he was given many and varied assignments. He required close supervision to get things done and his different supervisors had to reprimand him for shirking his duties. His personal appearance, behavior, and mental attitude were not such as to bring credit to the military service. He lacked the will to accomplish any assigned duty. e. The applicant’s commander recommended the applicant’s discharge under the provisions of Army Regulation 625-208 rather than Army Regulation 635-209 with an Undesirable Discharge Certificate, due to the seriousness of the offenses stated. His retention was not in the best interests of the Army. 11. On 16 January 1962, the applicant signed a statement acknowledging receipt of the board action on 16 January 1962. The referenced board action is not contained in his service records. 12. On 16 January 1962, the Assistant Adjutant, Headquarters, Fort Sheridan, IL, published an endorsement indicating the applicant's separation was approved under the provisions of Army Regulation 635-209 and he would be issued a General Discharge Certificate. 13. Also on 16 January 1962, Headquarters, Fort Sheridan, IL, published Special Orders Number 12 indicating that by order of the Secretary of the Army, the applicant was ordered discharged from the Army effective 16 January 1962 by reason of character and behavior disorder with an under honorable conditions (general) discharge. 14. The applicant was discharged accordingly on 16 January 1962. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-209 (Separation Program Number (SPN) 264 (unsuitability due to character and behavior disorders)) with an under honorable conditions (general) character of service. His DD Form 214 also shows he completed 4 months and 28 days of active service and he had 117 days of lost time. 15. There is no evidence 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 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses * drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana * an established pattern for shirking * an established pattern showing dishonorable failure to pay just debts 2. 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 only 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. Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available. A general or an honorable discharge was considered appropriate. Unsuitability included: * inaptitude * character and behavior disorders * disorders of intelligence and transient personality disorders due to acute or special stress * apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively * enuresis * chronic alcoholism * Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts) 3. On 15 July 1966, Army Regulation 635-212 (Unfitness and Unsuitability) consolidated/superseded Army Regulation 635-208 and Army Regulation 635-209. 4. Army Regulation 635-200 (Personnel Separations), which superseded Army Regulation 635-212, 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 upgrade of discharges based on personality disorders. 5. 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. 6. Appendix A (SPN) and Authority Governing Separations) of Army Regulation 635-5 (Separation Documents), in effect at the time, provided for an SPN and corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPN of "264" was the SPN assigned to Soldiers discharged for unsuitability due to character and behavior disorders. DISCUSSION: 1. The available evidence shows the applicant was reported in an AWOL status from 12 August to 7 October 1961 and he was confined from 8 October to 22 October 1961. While in confinement, he underwent a mental status evaluation that revealed he had manifested a deep-seated character and personality disorder, and he was diagnosed with "passive aggressive reaction with evidence of emotional instability." 2. In November 1961, he was investigated by military police for possible bribery and it appears he may have been pending trial by a court-martial. However, the disposition of the charges is unknown. 3. In early January 1962, the applicant's immediate commander initiated separation action against him citing the AWOL offense and/or continued misconduct and indicated the applicant was pending trial by a special court-martial. 4. The complete separation packet is not available for review with this case. However, the applicant's discharge orders and DD Form 214 both indicate he was separated on 16 January 1962 in accordance with Army Regulation 635-209 (Unsuitability), SPN 264. 5. His administrative separation appears to have been accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights. Based on his record of indiscipline, the separation authority determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 6. Nevertheless, the Brotzman Memorandum mandated that the presence of a personality disorder (formerly known as character and behavior 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. 7. The reason for the applicant's discharge was unsuitability due to a personality disorder (formerly known as character and behavior disorders). Other circumstances surrounding his discharge also exist. His records reveal a pattern of misconduct consisting of multiple instances of being AWOL, confinement, and court-martial charges for bribery. He completed 4 months and 28 days of active service and he had 117 days of lost time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000725 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000725 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2