BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006577 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. showing the individual concerned was separated from the service with an honorable discharge on 6 December 1972; b. issuing him an Honorable Discharge Certificate from the Army of the United States, dated 6 December 1972, in lieu of the General Discharge Certificate of the same date now held by him; and c. issuing him a new DD Form 214 reflecting the above corrections. 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: 8 May 2018 DOCKET NUMBER: AR20160006577 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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: 8 May 2018 DOCKET NUMBER: AR20160006577 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 his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant states he would like to get an education and he was too young to know what he was signing at the time of his discharge. 3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Florida Department of Education letter, dated 24 February 2016. 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 8 January 1971. Following his completion of initial entry training, he was assigned to the 881st Light Equipment Maintenance (LEM) Company, Federal Republic of Germany. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: a. on 17 September 1971, at Hessen Homburg Kaserne, Hanau, Germany, for failure to repair on or about 12 September 1971; and b. on 11 January 1972, at Hessen Homburg Kaserne, Hanau, Germany, for disobeying a lawful order from a superior on or about 31 December 1971 and for wrongfully possessing 0.50 grams or less of marijuana on or about 3 January 1972. 4. The applicant's records contains: a. Special Orders Number 196, issued by Headquarters, 97th General Hospital, Frankfurt, APO NY on 6 October 1972, which assigned him to the Medical Holding Company, 97th General Hospital, effective 8 October 1972. b. Special Orders Number 204, issued by Headquarters, 97th General Hospital on 19 October 1972, which reassigned him to the Medical Hospital Center, Fort Gordon, GA via medical evacuation, effective 25 October 1972. 5. A Fort Gordon Medical (FGMED) Form 5136 (Psychiatric Evaluation), dated 10 November 1972, shows the applicant was received a psychiatric evaluation by a licensed medical professional, at the request of his commander, due to his hospitalization. a. The medical professional stated the evaluation revealed no evidence of any mental condition that would warrant consideration for treatment, hospitalization, or other disposition via medical channels. The applicant was capable of distinguishing right from wrong and of adhering to the right. He possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by the command. b. He was diagnosed with passive-aggressive personality disorder, chronic, severe, manifested by immaturity, inability to adjust to military environment, use of unauthorized drugs, infractions of military rules and regulations, and impaired insight and judgement; severe predisposition of lifelong history of adaptation problems; marked personality impairment. Not in line of duty – not due to own misconduct. c. The medical professional stated the applicant had about two years of active duty and has used a variety of drugs, including hash, speed, LSD, downers, and rare use of heroin and cocaine. He was admitted to a hospital in Germany for an acute organic brain syndrome secondary to a drug overdose. He had a lifelong history of adaptation problems and had a rather difficult childhood. d. The medical professional viewed him as being unlikely to be able to conform to military standards in the future and therefore, administrative separation was recommended. 6. The applicant was notified of his immediate commander's intent to initiate separation actions against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). His immediate commander advised him of his right to present his case to a board of officers, to submit statements on his behalf, to be represented by counsel, and to waive any of his rights in writing. Further, his commander recommended he receive a general discharge. 7. The applicant acknowledged receipt of the separation action on 20 November 1972. He consulted with legal counsel on the same date and was advised of the basis for the contemplated separation actions for unsuitability. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life in the event a less than honorable discharge was issued to him. He waived consideration of his case before a board of officers, a personal appearance before a board of officers, and representation by counsel. He did not submit statements on his own behalf. 8. The applicant's immediate commander initiated separation action against him on 20 November 1972, under the provisions of Army Regulation 635-212, by reason of unsuitability, and recommended he be issued a General Discharge Certificate. As reasons for the separation recommendation, the commander cited the applicant's character and behavior disorder as determined by medical authorities, which did not qualify for a medical board. 9. The applicant's intermediate commander recommended approval of his immediate commander's request for discharge with a General Discharge Certificate on 29 November 1972. 10. The separation authority approved the request for discharge on 30 November 1972, under the provisions of Army Regulation 635-212 by reason of unsuitability, and directed that he be furnished a General Discharge Certificate. 11. The applicant was discharged on 6 December 1972, under the provisions of Army Regulation 635-212, by reason of unsuitability. He completed 1 year, 10 months, and 29 days of total active service. The DD Form 214 he was issued shows he was assigned Separation Program Number (SPN) 264 (Unsuitability, character and behavioral disorders) and he was issued a General Discharge Certificate. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. The applicant provides a Florida Department of Education letter, dated 24 February 2016. It states that his request for a standard high school diploma through the Florida Veterans' High School Diploma Program would not be processed, due to the character of service shown on his DD Form 214 ("Under Honorable Conditions" versus "Honorable"). REFERENCES: 1. Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. 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. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: * inaptitude * character and behavior disorders * apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively) * alcoholism * enuresis 4. Army Regulation 635-200, 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. a. In connection with these changes, a Department of the Army Memorandum, dated 14 January 1977, was promulgated. This memorandum, known as the Brotzman Memorandum, required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. b. 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 was "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" that would justify a less than fully honorable discharge. DISCUSSION: 1. The applicant requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The evidence of record shows the applicant received two NJP actions and his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. He was hospitalized and as a result, on 10 November 1972, he was evaluated by a licensed medical professional and diagnosed with chronic passive-aggressive personality disorder. He was recommended for an administrative separation as the condition did not warrant disposition through medical channels. 3. Accordingly, his immediate commander initiated separation actions against him for unsuitability, based on a character and behavior disorder. The applicant’s administrative separation was accomplished in compliance with applicable regulations at the time. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case at the time. 4. The evidence shows he was diagnosed with a personality disorder. The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for discharge upgrades based on personality disorders. Therefore, his application was reviewed using the revised criteria of Army Regulation 635-200. 5. The Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify the upgrade of a discharge to fully honorable except in cases where there is "clear and demonstrable reasons" that a fully honorable discharge should not be granted. 6. Based on the fact that his record shows only minor instances of misconduct and a diagnosed character and behavior disorder (now known as personality disorder), his separation meets the criteria stipulated in the Brotzman-Nelson for an upgrade of his discharge to fully honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006577 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006577 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2