ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20170006905


APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, that he has no police record nor has he been in any trouble for six months after his discharge.  He feels, he could have his discharge changed.  He also states that he does not qualify for United Services Automobile Association (USAA) insurance because of his discharge and if he gets it upgraded, he would qualify.

3.  A review of the applicant’s service record shows:

	a.  He enlisted on 28 March 1960 in to the Regular Army (RA).  He served in Germany from 10 March 1961 to 13 August 1962.

	b.  His DD Form 458 (Charge Sheet) indicates court-martial charges were preferred on 26 March 1962.  He was charged with one specification of disobeying a lawful order.

	c.  Summary Court Martial Number 16, indicates he was found guilty of all charges, and his punishment consisted of restriction to his company area for one month.

	d.  His DD Form 458 indicates court marital charges were preferred on 10 July 1962.  He was charged with one specification of breaking restriction.

	e.  Summary Court Martial Number 48, indicates he was found guilty of all charges, and his punishment consisted, in effect, confinement for 45 days of hard labor and reduction to private (PVT)/E.1.

	f.  On 19 July 1962, his immediate commander recommended administrative separation under the provisions of Army Regulation (AR) 635-209 (Personnel Separations – Discharge – Unsuitability), due to his inability to adhere to the established standards of discipline and his failure to demonstrate either the ability or initiative to meet the minimum standards of military service.  His unsatisfactory duty performance and poor off duty behavior attested to his unsuitability for the military service.

	g.  On 19 July 1962, he acknowledged the actions being taken to separate him under the provisions of AR 635-209.  He also acknowledged that he was afforded but declined counsel.  He waived his rights to a board hearing and desired not to submit a statement on his behalf.

	h.  Consistent with the immediate commander’s recommendation, the separation authority approved the request for administrative discharge under the provisions of AR 635-209, for unsuitability on 26 July 1962 with an under honorable conditions discharge (General).

	i.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that on 14 August 1962, he was discharged from active duty under the provisions of AR 635-209, Separation Program Designator (SPN) 264 (Unsuitability – Character and Behavior Disorders), with an under honorable conditions character of service.  He had 2 years, 4 months and 17 days of active duty service. 

4.  By regulation (AR 635-209), an individual will be discharge for unsuitability when it is determined that an individual is unsuitable for further military service because of lack of physical stamina, character or behavior disorders or apathy.

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

6.  AR 635-200, which superseded AR 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, and 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.  It requires that every service member discharged for unsuitability due to personality disorder be given an honorable discharge unless convicted by a general court-martial or more than one special court-martial.

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 warranted.  One potential outcome discussed was to deny the applicant’s requested based upon a lack of evidence submitted by the applicant showing any post-service achievements to show he has learned and grown from the events leading to his discharge.  However, based on the type of misconduct and the punishment already done as a result of that misconduct, the Board concluded that upgrading the characterization of service to Honorable was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	:	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	X	:	DENY APPLICATION

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 reissuing the applicant a DD Form 214 showing his characterization of service as Honorable.
	 
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 Army Board for Correction of Military Records (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 (AR) 635-209 (Personnel Separations – Discharge – Unsuitability), establishes the policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unsuitable for further military service.

	a.  Paragraph 1 (General), states that continued effort and attention will be given to the screening and elimination of inapt and unsuitable enlisted personnel.

	b.  Paragraph 12 (Disposition of Proceedings), states that when discharge is ordered by the convening authority, the approved proceedings will be forwarded to the appropriate commander who executes the discharge.

	c.  Paragraph 13 (Reason and authority for discharge), when an individual is discharged pursuant to these regulations, the specific reason and authority for discharge (item 11c, DD Form 214 (Armed Forces o:f the United States Report o:f Transfer or Discharge) will be entered as shown.

	d.  Paragraph 14 (Form of discharge certificate to be given), states that when an individual discharged because of unsuitability will be furnished DD Form 256a (Honorable) or DD Form 257a (General), as directed by the convening authority.

3.  AR 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

4.  AR 635-200, which superseded AR 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.  

	a.  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 upgrade of discharges based on personality disorders.  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.

	b.  The Settlement Agreement required amendment of AR 635-200 in 3 ways:

		(1)  To prohibit the consideration of any psychiatric diagnosis of personality disorder in the determination of the type and character of separation (these should be based on conduct and efficiency during current enlistment and not on a personality disorder so as not to stigmatize based on medical conditions);

		(2)  To require that every personality disorder diagnosis be made by a physician trained in psychiatric medicine (a psychiatrist of doctor of psychology­ to ensure competent diagnosis); and

		(3)  To require that every service member discharged for unsuitability due to personality disorder be given an honorable discharge unless convicted by a general court-martial or more than one special court-martial.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  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 based on equity, injustice, or clemency grounds, BCM/NRs 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.  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)	 AR20170006905


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