ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160017596 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and that he be awarded any awards that he is entitled to. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he received a general discharge; however, the facts surrounding his discharge were in disagreement. The statements that were given were identical and repetitive. He feels the punishment was harsh surrounding the situation and period of time in which it occurred. During the Vietnam era, Soldiers were encourage to be aggressive. Since his release for active duty into civilian life, he has been a model citizen. He has worked for the same company for thirty years and has been married to the same woman for forty three years. He volunteers as a coach for a little league football team and has become a deacon in the church. He volunteers his free time to visit with the elderly to provide solace and support. 3. The applicant was inducted into the Army of the United States on 1 June 1965. 4. The applicant accepted non-judicial punishment (NJP) on 7 September 1965, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for without proper authority, failing to go at the prescribed time to his place of appointed duty. 5. The applicant underwent a mental status evaluation on or about 29 September 1965, for an evaluation of passive aggressive behavior. The psychiatrist diagnosis was stated as: * enlisted member displays, passive-aggressive reaction, emotionally unstable personality, poor judgment, impulsiveness, poor control anxiety and hostility, weak interpersonal relationship, complete lack of motivation for completing military obligation * enlisted member is not amenable to psychiatric treatment in the military setting * enlisted member is mentally able to distinguish right from wrong * enlisted member is mentally able to understand the nature of board proceedings and can testify on his own behalf * there is no mental defect warranting medical separation * the enlisted member is cleared psychiatrically for disciplinary and administrative action 6. Special Court-Martial Order Number 56, issued by Headquarters, 4th Training Brigade, Fort Polk, Louisiana on 29 September 1965, shows the applicant was convicted on 29 September 1965 for: a. disobeying a lawful order issued by a noncommission officer, on or about 13 September 1965; and b. wrongfully communicated to another Soldier a threat to his life, on or about 13 September 1965. 7. The applicant was notified, on or about 29 September 1965, of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability), paragraph 3b, by reason of unsuitability. 8. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-209, paragraph 3b, its effect of the rights available to him; and of the effect of any action taken by him to waive his rights. The applicant acknowledged receipt of the proposed separation and declined to submit statements in his own behalf. 9. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-209, paragraph 3b, by reason of unsuitability. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 1 October 1965, for unsuitability, and directed that the applicant be issued a General Discharge Certificate. 10. The applicant was discharged on 21 October 1965. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-209, paragraph 3b, and his service was characterized as under honorable conditions. His Separation Program Number (SPN) is listed as "264." 11. Consideration of an upgrade of his discharge under the guidelines set forth in the Brotzman and Nelson memoranda was contemplated; however, the applicant's record shows he was found guilty by a general court-martial, which indicates a "clear and demonstrable reason" that would justify a less than fully honorable discharge. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Based upon the short term of service completed prior to multiple occasions of misconduct beginning (some of a serious nature), the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Member 1 Member 2 Member 3 : : : FULL GRANT : : : PARTIAL GRANT : : : FORMAL HEARING GRANT X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 635-209 by reason of unsuitability. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governed the policies and procedures for the separation of enlisted personnel; it superseded Army Regulation 635-209. a. This regulation provided 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. It 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 a personality disorder (formerly known as character and behavior 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. c. A second 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 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 a general court-martial or by more than one special court-martial were determined to be "clear and demonstrable reasons" that would justify a less than fully honorable discharge. 4. 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. Unsuitability included: (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20170005918