ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20170000039 APPLICANT REQUESTS: His general discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record 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 (USC), 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 was told the upgrade would be automatic and he needs verification of his honorable service for a home loan guarantee. 3. The applicant enlisted in the Regular Army on 28 May 1969. 4. Before a summary court-martial on 26 June 1969, at Fort Leonard Wood, Missouri, the applicant was found guilty of being absent without leave (AWOL) from on or about 13 June through on or about 14 June 1969. 5. The applicant served in the Republic of Vietnam from on or about 4 December 1969 through on or about 29 July 1970. 6. The applicant underwent a psychiatric evaluation on 31 March 1970, which diagnosed him with an immature personality – passive aggressive. 7. The applicant received nonjudicial punishment (NJP) on 11 May 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping on post as a sentinel and failure to go to his place of duty, on or about 5 and 6 May 1970. 8. The applicant's immediate commander notified that applicant on 30 June 1970 that he was initiating separation actions against him under the provisions of 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unsuitability. The commander cited the applicant's unsatisfactory performance as the reason for his actions. 9. The applicant's unit commander initiated separations against the applicant on 30 June 1970, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unsuitability. 10. The applicant acknowledged receipt of the proposed separation notification on 14 July 1970. He consulted with counsel and was informed of the basis for the contemplated actions to accomplish his separation from service. The applicant waived consideration of his case by, and appearance before, a board of officers. He further waived his right to submit a statement in his own behalf. 11. The applicant received NJP on 24 July 1970, under the provisions of Article 15 of the UCMJ, for possessing five marijuana cigarettes, a narcotic tablet, and carrying a concealed weapon. 12. The separation authority approved the applicant's separation. Consequently, he was discharged on 30 July 1970, under the provisions of Army Regulation 635-212. His DD Form 214 shows he was separated in the rank/grade of private/E-1, he was issued separation program number (SPN) 264 (unsuitability, character and behavioral disorders), and his service was characterized as under honorable conditions. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple UCMJ violations, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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, USC, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. 4. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. 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. 5. Army Regulation 635-200 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" which would justify a less than fully honorable discharge. 6. Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. 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. ABCMR Record of Proceedings (cont) AR20170000039 0 2 1