IN THE CASE OF: BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220008964 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 he doesn't remember doing anything wrong and doesn't remember the reason for his discharge. 3. The applicant enlisted in the Regular Army on 27 August 1963 for 3 years. He completed training with award of military occupational specialty 311.17 (Infantry Communications Specialist). The highest grade he held was E-3. 4. The applicant had an immediate reenlistment on 3 September 1964 with the issuance of a DD Form 214 (Report of Transfer or Discharge) showing 1 year and 6 months of net active service this period. His service was characterized as honorable. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 16 June 1964, for theft of a pool cue from a fellow Soldier on 11 June 1964 * 24 August 1964, for being absent without leave from on or about 0555 hours on 10 August 1964 to on or about 0720 hours on 11 August 1964 * 27 November 1964, for possession and use of an extra Liberty Pass 6. The applicant was afforded a mental hygiene evaluation on 9 March 1965. He was referred for evaluation by his command. The evaluation noted a pre-service history of trouble including convictions for running away from home, forgery, and incorrigibility. The attending physician recommended the applicant for separation and found: * there were no disqualifying mental or physical defects sufficient to warrant medical separation processing * he was mentally responsible, both to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in Board proceedings. * his condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another organization or station, or reclassification to another type of duty 7. On 25 March 1965, the applicant's immediate commander recommended the applicant for separation. His reasons for the recommendation were since the applicant's assignment to the company, he had been unable to cope with Army life and lacked necessary discipline. He was not a responsible person in personal or military affairs having been absent without proper authority from class on several instances and was reported as a problem student by instructors. He also had written several bad checks. 8. The applicant acknowledged the recommendation notification on 25 March 1965, under the provisions of Army Regulation (AR) 635-209 (Personnel Separations ? Discharge - Unsuitability -Character or Behavioral Disorders), for character and behavior disorders. He waived his administrative rights including to consult with counsel, to have his case heard by a board of officers, and to submit a statement in his own behalf. 9. The separation authority approved the discharge on 1 April 1965, under the provisions of AR 635-209, and directed he receive a General Discharge Certificate. 10. The applicant was discharged on 27 April 1965, under the provisions of AR 635- 209 with Separation Program Number 264 (Unsuitability). His service was characterized as general, under honorable conditions. He had 7 months and 25 days of net service this period with 1 year, 8 months, and 1 day of total active service. His awards are shown as the: * Sharpshooter Qualification Badge with Rifle bar * Parachutist's Badge. 11. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant was discharged on 27 April 1965, under the provisions of AR 635-209 with Separation Program Number 264 (Unsuitability) for character and behavior disorder. His service was characterized as general, under honorable conditions. He completed 7 months and 25 days of net service this period. There was no misconduct such as a general/special court-martial conviction in his record. As such, in accordance with Brotzman settlement, and the subsequent Nelson memorandum, the applicant’s character of service should be upgraded to honorable. ? 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 reissuing the applicant a DD Form 214 for the period ending 27 April 1965 showing the character of service as Honorable. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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) governed the policies and procedures for the separation of enlisted personnel. This regulation provided 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. 3. Army Regulation 635-209 (Personnel Separations ? Discharge - Unsuitability - Character or Behavioral Disorders), in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Unsuitability included character and behavior disorders. Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 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. 5. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20220008964 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1