ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170016040 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Denial letter from United Services Automobile Association (USAA) 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 he wants a change to his discharge type to honorable so he can get USAA membership. When he was discharged, he was told he was too nervous for the service. After his discharge, he ended up spending time in a Veterans Affairs (VA) Hospital in Madison, WI due to frequent migraine headaches. He wanted to get a USAA membership but they said he need an honorable discharge. 3. The applicant provides a letter from USAA that states after reviewing his documents they determined that he was not eligible for USAA membership because of his under honorable conditions (general) discharge. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 16 September 1958. b. On 3 November 1959, his DD Form 458 (Charge Sheet) shows he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to hard labor without confinement for 45 days, reduction to private/E-1, and forfeiture of pay. c. On 25 February 1960, his DD Form 458 (Charge Sheet) shows he was convicted by a summary court-martial of one specification of breaking restriction. The court sentenced him to forfeiture of pay and reduction to PVT/E-1. d. On 15 July 1960, he was convicted by a special court-martial of one specification of assaulting another private by wrestling him to the ground. The court sentenced him to confinement for 6 months, forfeiture of $55.00 per month for 6 months, and reduction to private/E-1. The convening authority approved the sentence on 20 July 1960. e. On 21 December 1960, his Detailed psychiatric study reveals that the applicant had already had already had 3 courts martial and 1 Article 15 and is rated by his unit as unsatisfactory in character and efficiency, and as disrespectful and belligerent in his attitude toward superiors. He is poorly motivated to remain in the service. Prior to coming into the service this man was forced to leave school in the 10th grade because he could not get along and also got into numerous fights and other situations. He is suffering from a lifelong character disorder manifested by poor control and hostile impulses, a tendency to be belligerent, impulsivity and a tendency to use physical force to try to solve his problems. It is unlikely that brief psychiatric treatment will modify his basic character disorder or increase his value to the military service. His diagnosis was aggressive reaction * Psychiatric clearance is granted for appearance before a Board convened under the provisions of Army Regulation (AR) 635-209 (Personnel Separations – Unsuitability) or other appropriate administrative action * He was and is mentally responsible both to distinguish right from wrong, and to adhere to the right. He possesses sufficient intellectual capacity to understand any charges that may be brought against him, and to cooperate in his own defense or in board proceedings * There are no mental or physical defects sufficient to warrant discharge under the provisions of Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement or Separation), A and B f. On 9 January 1961, his immediate commander recommended discharge from the military service under the provisions of AR 635-209 for constant violation of Army Regulations and company policy. g. On 23 January 1961, the applicant, waived his right to legal counsel and was advised of the commander’s intent to eliminate him under the provisions of AR 635-209. He waived a hearing before a board of officers and did not submit any statements on his behalf. h. On 24 January 1961, consistent with the chain of command recommendation, the separation authority approved the applicant's discharge under the provisions of AR 635-209, Separation Program Number (SPN) 264 (unsuitability). He ordered the applicant receive a General Discharge Certificate. i. The applicant was discharged on 31 January 1961. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-209 with an under honorable conditions (general) discharge. He was furnished a General Discharge Certificate. His DD Form 214 shows he completed 2 year, 4 months, and 16 days of active service. 5. By regulation, 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. 6. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service. He failed to accept responsibility and show remorse for the true events leading to his separation. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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 - Unsuitability) 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. Appendix A, Separation Program Number (SPN) and Authority Governing Separations) of AR 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. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016040 4 1