ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 June 2019

	DOCKET NUMBER:  AR20180014563


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

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) in lieu of 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 (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 that since he got an under honorable conditions (general) 
discharge for medical reasons, and since his discharge was through no fault of his own, 
it should be upgraded to an honorable discharge.

3.  The applicant enlisted in the Regular Army on 5 March 1975.  

4.  Special Court-Martial Order Number 21, issued by Headquarters U.S. Army Training 
Center, Infantry and Fort Polk, Louisiana, shows the applicant was tried before a special 
court-martial on 19 May 1975 and was convicted of being absent without leave (AWOL) 
from on or about 2 May 1975 until on or about 4 May 1975, and for failure to obey a 
lawful order to draw his military equipment and prepare himself for his military duties, on 
or about 7 May 1975.  His sentence included confinement at hard labor for four months 
and a forfeiture of pay of $45.00 pay per month for four months.

5.  The applicant's record contains a Standard Form 502 (Clinical Record – Narrative 
Summary), dated 22 December 1975, which shows the applicant underwent a mental 
status evaluation, on or about 22 December 1975, from a medical doctor (medical corps 
officer) after having been AWOL approximately 30 days prior to being hospitalized for 
psychological testing.  

	a.  He was diagnosed with adjustment reaction of adult life, acute, severe; 
manifested by going AWOL when frustrated by regimentation; precipitating stress, 
moderate, marital disharmony and routine Army regimentation; predisposition, severe, 
passive-dependent personality with marked impulsiveness; degree of impairment for 
further military duty, marked.  Condition:  Treated, unchanged.  

	b.  The doctor recommended the applicant return to duty to face charges.  The 
doctor stated that he did not feel that the applicant would be of benefit to the Army and 
he did not believe punishment would change his unfitness.  The doctor recommended 
the applicant be administratively discharged.

6.  The applicant's immediate commander notified the applicant on 5 February 1976 that 
he intended to recommend him for elimination from military service under the provisions 
of Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), 
Chapter 13-5b(2) for unsuitability.  

7.  The applicant's immediate commander formally recommended the applicant's 
separation on 5 February 1976, under the provisions of Army Regulation 635-200, 
Chapter 13-5b(2), by reason of unsuitability (character and behavior disorders [later 
deemed personality disorders]).

8.  The applicant consulted with counsel on 10 February 1976 and acknowledged 
receipt of the notification.  He was advised of the possible effects of a less than fully 
honorable discharge and the procedures and rights that were available to him.  He 
further acknowledged he understood that if his discharge request was approved he 
could be ineligible for many or all benefits as a veteran under both Federal and State 
Laws and that he may expect to encounter substantial prejudice in civilian life.  He 
waived consideration of his case by, and personal appearance before, a board of 
officers, and he declined to submit a statement in his own behalf.

9.  The separation authority approved the applicant's discharge on 10 February 1976, 
under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability and 
directed the applicant be issued a General Discharge Certificate.  

10.  The applicant was discharged on 13 February 1976, under the provisions of Army 
Regulation 635-200, paragraph 13-5b, with special program designator (SPD) code 
"JMB" (character or behavior disorder).  His DD Form 214 (Report of Separation from 
Active Duty) confirms his service was characterized as "Under Honorable Conditions."

11.  Army Regulation 635-200 provided the authority for the separation of enlisted 
personnel upon expiration of term of service; the authority and general provisions 
governing the separation of enlisted personnel prior to expiration of term of service; and 
the criteria governing the issuance of Honorable and General Discharge Certificates.

	a.  Chapter 13 of the version in effect at the time provided for the separation of 
Soldiers for unsatisfactory performance.

	b.  Paragraph 13-5a of the version in effect at the time provided for the separation of 
Soldiers for unfitness (misconduct), and paragraph 13-5b provided for the separation of 
Soldiers for unsuitability.

		(1)  Sub-paragraph (1) applied to those Soldiers being separated for inaptitude.

		(2)  Sub-paragraph (2) applied to those Soldiers being separated for character 
and behavior disorders [later deemed personality disorders].

		(3)  Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack 
of appropriate interest), defective attitudes, and inability to expend effort constructively.

12.  Army Regulation 635-200 was revised on 1 December 1976 following the 
settlement of a civil suit.  Thereafter, the type of discharge and the character of service 
imposed were to be determined solely based upon the individual's military record during 
the respective period of enlistment.  Further, any separation for unsuitability, based on 
personality disorder, must have included a diagnosis of a personality disorder made by 
a physician trained in psychiatry.  

	a.  The Brotzman Memorandum required retroactive application of revised policies, 
attitudes and changes in reviewing applications for upgrade of discharges based on 
personality disorders.

	b.  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.  

13.  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 evidence, the Board found that relief 
was warranted.  The board applied Office of the Secretary of Defense standards of 
liberal consideration and clemency to the complete evidentiary record, including the 
applicant’s statement and found the applicant’s account of and corroborating medical 
evidence of the applicant’s behavioral health conditions to be compelling. The Board 
agreed that the applicant’s case warrants clemency in accordance with the Brotzman 
and Nelson memoranda in that the applicant’s documented behavioral health condition 
at the time of the misconduct is a mitigating factor for the applicant’s misconduct and 
resultant discharge characterization.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:x	:x	:x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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 amending the applicant’s 
DD Form 214 ending “76-02-13” by showing:

*	item 9a (Separation Authority) as "Para 5-3/AR 635-200/SPD JFF” 
*	item 9e "(Character 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.

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 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 sets forth the requirements and procedures for administrative 
discharge of enlisted personnel.

   a.  Paragraph 3-7a states 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.  Chapter 13 in effect at the time established policy and provided procedures and 
guidance for eliminating enlisted personnel found to be unfit or unsuitable for further 
military service.  It provided for the separation of individuals for unsuitability whose record 
evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to 
expend effort constructively.  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.  Paragraph 13–5b(2) of the version in effect at 
the time applied to Soldiers being separated for character and behavior disorders, later 
deemed personality disorders.  
   
3.  Army Regulation 635-200 was revised on 1 December 1976 following the settlement 
of a civil suit.  Thereafter, the type of discharge and the character of service imposed 
were to be determined solely based upon the individual's military record during the 
respective period of enlistment.  Further, any separation for unsuitability, based on 
personality disorder, must have included a diagnosis of a personality disorder made by 
a physician trained in psychiatry.  

	a.  The Brotzman Memorandum required retroactive application of revised policies, 
attitudes and changes in reviewing applications for upgrade of discharges based on 
personality disorders.

   b.  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.  
   
4.  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.

//NOTHING FOLLOWS//



ABCMR Record of Proceedings (cont)	 AR20180014563

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