BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20190002800 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 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: a. He is a Vietnam veteran. He was given a discharge under the provisions of Army Regulation (AR) 635-212 (Personnel Separations - Discharge – Unfitness and Unsuitability), with separation program number (SPN) 264 (unsuitability, character and behavioral disorders). He did not fully understand what this meant to his future as a veteran, so until now he had not pursued a fair and just honorable discharge until now. He believes that the type of discharge that he was given is an injustice to him. He was not given the opportunity to defend himself nor was he given the opportunity to face his accuser. b. He does know and understand that as a young man being drafted into the military in the 60's and being a young black man, he was taken advantage of financially, physically, and mentally. His hope is that the Board looks fairly into his case and gives his case the type of attention that he feels it deserves. He is not asking for anything monetary, only that he be given the type of discharge he deserves, which is honorable. 3. On 9 June 1967, the applicant was inducted in the Army of the United States. He was honorably discharged on 15 June 1967 to enlist in the Regular Army for a period of 3 years. He was 19 years of age. He completed training requirements and was awarded his military occupational specialty. 4. The applicant's Enlisted Qualification Record shows he served in the Republic of Vietnam from on or about 15 February to 16 May 1968 and 7 February to 17 November 1969. Item 41 (Awards and Decorations) shows he was awarded or authorized the: * Republic of Vietnam Campaign Medal * National Defense Service Medal * Vietnam Service Medal (2nd award) * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal * Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar 5. His record contains documents that show he was counseled on several occasions for misconduct, and reassigned to two different companies based on his misconduct. He also received unsatisfactory conducting and efficiency ratings from 15 March 1969 until the date he was discharged. 6. On 20 August 1969, after refusing to accept non-judicial punishment and electing a trial by court-martial, the applicant was convicted by a summary court-martial for failing to be at his appointed place of duty. 7. On 18 October 1969, the 101st Airborne Division Psychiatrist completed a Report of Psychiatric Evaluation that shows: a. The applicant was fully oriented, sullen, and his motor behavior was normal. His speech was coherent and mood neutral. His affect was appropriate and there was no evidence of a thought disorder. His memory was intact; judgement and insight was fair. His intelligence was considered to be within normal limits. There was no evidence of drugs or alcohol present, and no evidence of psychosis or neurosis. b. The applicant was diagnosed with a passive-aggressive personality that existed prior to service. He related in a passive-aggressive manner. Future rehabilitative efforts would most likely be unsuccessful. c. The applicant met retention standards prescribed in chapter 3, AR 40-501 (Standards of Medical Fitness), and there was no psychiatric disease or defect which warranted disposition through medical channels. He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. The diagnosis represented a character and behavior disorder within the meaning of AR 635-212. d. It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful. It was recommended that the applicant be administratively separated from the military under the provisions of AR 635-212. 8. On 24 October 1969, the applicant’s commander and witnesses stated, in pertinent part, the applicant: * was often belligerent and borderline insubordinate * assaulted another Soldier, by hitting and attempting to choke him * was a part of a black militant group that threw a grenade near the noncommissioned officers sleep tent and showers * conducted himself unsatisfactorily * could not be rehabilitated, and every attempt to help him had been met with a rebellious attitude 9. On 2 November 1969, the applicant's commander notified the applicant of his intention to recommend his separation from the U.S. Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6b(2), for unsuitability based on his continual incidents of misconduct. The commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation action and of his rights. 10. On 3 November 1969, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action. a. He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. b. He was also advised that he may be discharged under conditions other than honorable, that he may be deprived of 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 because of a discharge under conditions other than honorable. c. The applicant waived consideration of his case by a board of officers; waived personal appearance before a board of officers; elected not to submit statements in his own behalf; and waived representation by counsel. d. His chain of command recommended approval of his discharge and the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the issuance of a General Discharge Certificate. He also directed all administrative actions required to effect his discharge be accomplished without delay. 11. On 19 November 1969, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-212, with a SPN of 264 for unsuitability, character and behavioral disorder. He completed 2 years, 5 months, and 5 days of total active service this period, including 11 months and 16 days of foreign service. 12. A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. 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 provided that 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. 14. Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel. This regulation 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. 15. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the Report of Psychiatric Evaluation and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel. This regulation 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. 4. 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. ABCMR Record of Proceedings (cont) AR20190002800 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002800 3 ABCMR Record of Proceedings (cont) AR20190002800 6