ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20190005391 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 18 September 1968 * General Discharge Certificate, dated 18 September 1968 * Applicant’s Member Identification Card from the Department of Veterans Affairs (VA) 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 the general under honorable conditions discharge denies his immediate family the ability to become members of the military organization known as United Services Automobile Association (USAA) which services military men and women and their families from all branch of service. 3. On 1 February 1968, at the age of 23 years old, the applicant was inducted into the Army of the United States for a term of 2 years. 4. On 13 June 1968, the applicant was convicted by summary court-martial for being absent without leave (AWOL) from 9 March 1968 and remaining absent until 30 May 1968. He was sentenced to restriction for 30 days. On 19 June 1968, the convening authority approved the sentence and ordered it executed. 5. The applicant was administered a psychiatric evaluation. On 29 July 1968, a report of neuropsychiatric examination revealed, in pertinent part: a. The applicant was referred to the mental hygiene consultation service by the orthopedic clinic. He had several visits at the orthopedic clinic because of a back problem but the orthopedic doctors felt there was a secondary gain for him from his back trouble. According to the applicant, the back problem stemmed from a car accident he had with his wife in April 1966. He and his wife were hit from behind. His wife was pregnant at the time and suffered a miscarriage the day after the accident. b. The psychiatrist indicated that his mental status was very passive and that the applicant expressed motivation to continue in the military if his physical symptoms were better. The applicant expressed a very strong religious orientation. The applicant was diagnosed with passive dependent personality, chronic, severe; manifested by helplessness and clinging because of alleged somatic symptoms, tendencies to somaticize all anxiety into somatic complaints, dependency seeking of doctors, religious figures and other authority figures, and poor immature judgement. c. The psychiatrist concluded that the applicant had a back problem and additionally had a personality disorder which expressed itself in developing somatic complaints and going on sick call. He did not think he would rehabilitate and represented a liability to the military service. 6. On 27 August 1968, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), under the provisions of paragraph 6b for unsuitability. 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 before a board of officers, and he elected not to submit statements in his own behalf. 8. On 16 September 1968, the appropriate commander approved the recommendation for separation and directed that the applicant be separated under the provisions of AR 635-212, paragraph 6b and issued a General Discharge Certificate. 9. On 18 September 1968, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general) under AR 635-212, with separation program number (SPN) 264. He completed 4 months, and 26 days of net service this period. His DD Form 214, shows: * He was awarded or authorized the National Defense Service Medal * 82 days lost 10. The applicant provided: * General Discharge Certificate, dated 18 September 1968, showing he was discharged with a general discharge * Applicant’s Member Identification Card from the Department of Veterans Affairs (VA) showing he was a VA healthcare enrollee and the card expired on 20 September 2024 11. The applicant states the general under honorable conditions discharge denies his immediate family the ability to become members of the military organization known as USAA. His record shows he was inducted at the age of 23 years, he was convicted by summary court-martial for being AWOL, which resulted in 82 lost days, and he was diagnosed by a psychiatrist with a personality disorder. He completed 4 months and 26 days of his 24 months service 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 635-5 (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. 14. 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). 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 statement, the length of his service, the frequency and nature of his misconduct, the assessment by a medical professional, the reason for his separation and whether to apply liberal consideration or clemency. The Board found insufficient evidence of in-service mitigation for an upgrade 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 theat relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 (AR) 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. 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. 4. AR 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. a. 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. b. 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. 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) AR20190005391 7 1