ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20190004360


APPLICANT REQUESTS:  The applicant requests an upgrade of his general under 
honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Two DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge) for periods ending:  30 May 1968 and 24 December 1968

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 was a good Soldier and never gave his superior any problems.  He went 
through basic training without any issues.  Things started to change when he arrived in 
Korea, after being in the demilitarized zone (DMZ) for months.  A lieutenant asked him 
about reenlisting for three years and that he would be paid ten thousand dollars 
($10,000) or five thousand dollars ($5,000).  He cannot remember which one but he 
knows he was offered one of them.  He never received the money and when he started 
inquiring about it he was moved from the DMZ to supply and transportation.  
   
   b.  He kept trying to find out why he was not being paid the money but the lieutenant 
kept giving him excuses and threated him.  He told the applicant if he did not stop 
bothering him about it that he would make things bad for him and he did.  The lieutenant 
took away the applicant’s passes.  The applicant being a young kid, went on a pass a 
few times anyway.  After a few times of taking away the passes, the lieutenant called 
him to his office while the applicant was working at the warehouse and told the applicant 
that he was going home.  He asked why and the lieutenant told the applicant because 
he said so and because the applicant leaves the base without a pass.  
   c.  The applicant thinks he was treated unfairly and that he should have been 
allowed to finish out his time in the Army.  He thinks the lieutenant should have been 
willing to talk to him instead of releasing him from the Army.

3.  On 27 September 1967, at the age of 20 years old, the applicant enlisted in the 
Regular Army for a term of 2 years.  On 30 May 1968, he was honorably discharged for 
immediate reenlistment.  On 31 May 1968, he reenlisted for a term of 3 years.  After 
completing initial entry training, he was assigned overseas in the Republic of Korea.

4.  His record shows he accepted nonjudicial punishment (NJP) on:

*	22 July 1968 for being absent without leave (AWOL) from 0730 hours, 18 July 
1968 and remained absent until 1630 hours, 18 July 1968
*	28 August 1968 for being AWOL from 24 August 1968 and remained absent until 
25 August 1968
*	4 October 1968 for breaking restriction
*	14 November 1968 for being AWOL from 1300 hours, 6 November 1968 and 
remained absent until 2400 hours, 6 November 1968 and for failing to go at the 
time prescribed to his appointed place of duty; the applicant appealed the NJP 
and the appeal was denied

5.  On 14 November 1968, a statement from a psychiatrist provides:

   a.  The applicant was an angry, immature individual who had little respect for military 
values and Army regulations.  He had a great deal of trouble taking orders and following 
instructions and therefore often clashed with his superiors.  His passive-aggressive 
attitudes toward the Army, his unwillingness to accept responsibility for the 
consequences of his actions, and his past AWOL record indicated that he would not 
make an adequate adjustment to military life.
   
   b.  The applicant was diagnosed passive-aggressive personality disorder but he was 
able to distinguish from right or wrong and to understand the board proceedings.  He 
also concluded the disorder was not amenable to hospitalization and did not warrant 
medical separation.  

6.  On 26 November 1968, the commander recommended the applicant for discharge 
under Army Regulation 635-212 (Personnel Separations – Discharge Unfitness and 
Unsuitability).  The commander stated the reason he recommended discharge was 
because of habits and traits of character manifested by the applicant by repeated 
disobedience to orders, and his very poor performance of duty.  He had been assigned 
to various duty assignments under different superior officers and noncommissioned 
officers.  In each instance, his performance of duty had been unsatisfactory.  His military 
superiors and psychiatric examiner agreed that further rehabilitative efforts would have 
been useless.
7.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, waived consideration of his case by a board 
of officers, and he elected not to submit statements in his own behalf.  

8.  On 5 December 1968, the appropriate commander approved the recommendation 
for separation and directed that the applicant be separated under the provisions of 
AR 635-212 with separation program number (SPN) 264 and issued a General 
Discharge Certificate.

9.  On 24 December 1968, the applicant was discharged accordingly.  His service was 
characterized as under honorable conditions (general).  He completed 1 year, 2 months, 
and 25 days of total active service, with 6 months and 18 days of Foreign Service.  His 
DD Form 214 for period ending 24 December 1968, shows:

*	He was awarded or authorized:

*	National Defense Service Medal
*	M-14 Rifle Sharpshooter Marksmanship Qualification Badge
*	M-60 Machine Gun Marksman Marksmanship Qualification Badge
*	Armed Forces Expeditionary Medal

*	3 Days Lost under Title 10, U.S. Code, Section 972 from 9 June 1968  - 10 June 
1968 and 24 August 1968 - 24 August 1968

10.  The applicant provided two DD Forms 214:

*	DD Form 214 for period ending 30 May 1968, showing the applicant was 
discharged with an honorable discharge
*	DD Form 214 for period ending 24 December 1968, showing he was discharged 
with an under honorable (general) discharge

11.  The applicant states he was treated unfairly and that he should have been allowed 
to finish out his time in the Army.  He thinks the lieutenant should have been willing to 
talk to him instead of releasing him from the Army.  His record shows he enlisted at the 
age of 20 years, he accepted four NJPs, and he had 3 days lost due to AWOL.  He 
completed 14 months and 25 days of his 38 months contractual obligation.

12.  AR 635-212, paragraph 6b, provided that Soldiers would be discharged by reason 
of 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.  An honorable or general discharge was issued as determined by the 
separation authority based upon the individual's entire record.
13.  AR 635-200 (Personnel Separations – Enlisted Personnel) superseded 
AR 635-212 in November 1972, and was subsequently revised on 1 December 1976, 
based on a civil suit settlement.  Later guidance mandated retroactive application of 
revised policies, attitudes, and changes in reviewing applications for discharge 
upgrades based on personality disorders.  In addition, the policy was expanded such 
that the presence of a personality disorder diagnosis would justify an upgrade of a 
discharge to fully honorable.  This rule was to be applied in all cases, except where 
there were "clear and demonstrable reasons" why a fully honorable discharge should 
not be given (i.e. conviction by a general court-martial or by more than one special 
court-martial).

14.  AR 635-5 (Personnel Separation – Separation Documents) provides that SPN 264 
is designated under the authority of AR 635-212 and the reason of unsuitability – 
character and behavior disorders.

15.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

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 record of service, the 
frequency and nature of his misconduct and the absence of mitigating factors.  The 
applicant did not provide any additional post-service accomplishments or letters of 
recommendation in support of a clemency determination.  The Board found insufficient 
evidence to correct the records and determined that the character of service the 
applicant received at discharge 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 (Personnel Separations – Discharge Unfitness and 
Unsuitability), in effect at the time, 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.

3.  Special Regulation 40-1025-2, in effect at the time, defined character and behavior 
disorders as those indicative of developmental defects or pathological trends in the 
personality structure, with minimal subjective anxiety, and little or no sense of distress.  
It stated further that, in most instances, the disorder was manifested by a lifelong 
pattern of action or behavior ("acting out") rather than by mental or emotional 
symptoms.  The associated categories were:

*	pathological personality types – maladjustment of individuals as evidenced by 
lifelong abnormal behavior patterns 
*	immaturity reactions – physically adult individuals who are unable to maintain 
their emotional equilibrium and independence when under minor or major stress
*	alcoholism – character disturbance due to alcohol abuse
*	addiction – includes cases where the use of drugs represent much deeper 
character disturbances where individuals engage in antisocial behavior, stealing, 
or sexual assault while under the influence of drugs
*	primary childhood behavior reactions – serious emotional difficulties within the 
child that are not due to organic defects where emotional displays are carried to 
an extreme degree

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.

5.  AR 635-5 (Personnel Separation – Separation Documents), in effect at the time, 
prescribed the separation documents that will be furnished each individual who is 
separated from the Army, including active duty for training personnel, and established 
standardized procedures for the preparation and distribution of these documents.  It 
provides that SPN 264 was designated for the authority of AR 635-212 and the reason 
of unsuitability – character and behavior disorders.

6.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 
states in paragraph 3-7a, 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.

7.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to 
Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records 
(BCM/NRs) when considering requests by Veterans for modification of their discharges 
due in whole or in part to: mental health conditions, including Post Traumatic Stress 
Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. 
Boards are to give liberal consideration to Veterans petitioning for discharge relief when 
the application for relief is based in whole or in part to those conditions or experiences. 
The guidance further describes evidence sources and criteria and requires Boards to 
consider the conditions or experiences presented in evidence as potential mitigation for 
misconduct that led to the discharge.

8.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.


ABCMR Record of Proceedings (cont)	 AR20190004360


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