ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20180003289 APPLICANT REQUESTS: upgrade of discharge from general under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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’s interested in utilizing Department of Veterans Affairs benefits and other benefits for Veterans under the Navajo nation. 3. A review of the applicant’s service record show: a. He was inducted into the Army of the United States on 27 May 1970 (although Item 10c of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows an induction date of 27 August 1970) and attained the rank of private first class/E-3. b. He accepted nonjudicial punishment (NJP) twice (on 3 March 1971 and 16 September 1971), under the provisions of Article 15, for absenting himself from his unit. c. The applicant’s service record was void of notification of separation document(s) from the applicant’s immediate commander. However, on 2 February 1972, the applicant signed acknowledgment that he was advised by counsel of the basis for the initiation of his separation under the provisions of AR 635-212 (Personnel Separations-Discharge Unfitness and Unsuitability) for unsuitability, the possible effects of a general under honorable conditions discharge, and the procedures and rights that were available to him. d. The applicant waived consideration of his case before a board of officers, waived a personal appearance before a board, and did not submit any statements on his behalf. He also waived representation by military or civilian counsel. e. He acknowledged that he understood if he received a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a Veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life. f. On 3 February 1972, the applicant was diagnosed by the staff psychiatrist at the Mental Hygiene Consultation Service, Fort Carson, CO, with an inadequate personality. The staff psychiatrist determined the applicant had been unable to cope with the stressful situations that are demanded by military life, as a result, he exhibits unadaptability, poor judgement, and social incompatibility. g. The staff psychiatrist opined the prognosis for the applicant was very poor. There was no evidence of psychosis or organic brain disorders present that would warrant separation from service through medical channels. The applicant was cleared (psychiatrically) for separation from the service through administrative channels as deemed appropriate his command. h. On 3 February 1972, the applicant’s immediate commander recommend him for separation under the provisions of AR 635-212 for unsuitability. i. On 14 February 1972, the separation authority ordered the applicant to be discharged under the provisions of AR 635-212, paragraph 15d for unsuitability and ordered the issuance of a general discharge certificate. j. Special Orders Number 49, dated 18 February 1972, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, discharged the applicant for unsuitability, effective 18 February 1972. He was given a general under honorable conditions character of service. k. His DD Form 214 shows the applicant was discharged from active service on 18 February 1972 under the provisions of AR 635-212, separation program number (SPN) 264 (character and behavior disorder) unsuitability. He was given a under honorable conditions character of service. l. The applicant completed 1 year, 1 month, and 1 day of active service and had 177 days of lost time from/to: * 10 to 25 February 1971 * 26 to 29 March 1971 * 30 March 1971 to 22 August 1971 * 2 to 3 September 1971 * 7 to 13 September 1971 m. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the applicant was authorized a National Defense Service Medal. 4. By regulation (AR 635-212), then in effect, 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. 5. The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is 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, 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. 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. 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. Personality Disorder cases prior to 1 December 1976 (Unsuitability; “Character and Behavior Disorder") (AR 635-209 = SPN 460, 461, 462, 463, 464, 480) (AR 635-212 = SPN 264) 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) AR20180003289 4 1