ABCMR Proceedings (cont)                                                        AR2002075535

PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 February 2003
	DOCKET NUMBER:   AR2002075535

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Ms. Deyon D. Battle | | Analyst

The following members, a quorum, were present:

| Ms. Joann H. Langston | | Chairperson
| Mr. Lester Echols | | Member
| Mr. Allen L. Raub | | Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that his general discharge be upgraded to an honorable discharge.

3.  The applicant states that he would have completed his tour of duty in Vietnam if his supervisors had not convinced him that it was in the best interest for him to accept a general discharge.

4.  The applicant’s military records show that he was inducted into the Army at Fort Bliss, Texas, on 5 June 1969 and he successfully completed his training as an infantryman.  On 11 October 1969, he was transferred to Vietnam.

5.  The applicant underwent a psychiatric evaluation on 5 December 1969.  The evaluation revealed that he was a fully oriented, alert, anxious, and guarded individual who had strong feelings of inadequacy and who was self depreciating. The psychiatrist stated that the applicant believed that others could not stand him and that he expressed considerable guilt for his past behavior.  The psychiatrist further stated that he had dreams of death for many years and that he believed that his life had been a waste with little real hope for the future.  He was diagnosed as having a passive aggressive passive dependent personality of a passive dependent type, which was chronic and severe.  The psychiatrist determined that the diagnosis represented a character and behavior disorder and that it was unlikely that efforts to rehabilitate the applicant would be successful.  The psychiatrist recommended that he be administratively separated from the military under the provisions of Army Regulation 635-212.

6.  On 17 January 1970, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability.  The commander cited the applicant’s medical evaluation and duty limitation as the basis for his recommendation.  The applicant acknowledged receipt of the notification and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf. 

7.  On 11 February 1970, the recommendation for discharge was returned for additional and stronger comments from the division psychiatrist as to the reason why the applicant was being recommended for discharge under the provisions of Army Regulation 635-212.  The psychiatrist included an addendum to his initial evaluation stating that the applicant had been seen several times on an outpatient basis and required additional hospitalization on one occasion because of chronic depression.  The psychiatrist stated that he continued to function on a marginal basis and experienced alternating periods of anxiety and depression.  The psychiatrist further stated that although he was not actively suicidal at the present, he was definitely predisposed to withdrawal and self-destruction as his way of coping with stress and that he was quite likely make a serious attempt at suicide.  The psychiatrist recommended that the applicant be administratively separated from the Army under the provisions of Army Regulation 635-212 for unsuitability as soon as possible.

8.  The appropriate authority approved the recommendation for discharge on 17 February 1970.  Accordingly, on 3 March 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability.  He had completed 8 months and 29 days of total active service and he was issued a General Discharge Certificate.

9.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-212, in effect at the time of the applicant’s discharge, provided for discharge for unsuitability.  Paragraph 3 of that regulation specified that action would be taken to separate a member for unsuitability when it established that a member met retention medical standards, and that a member would unlikely develop sufficiently to participate in further military training and/or become a satisfactory soldier.

11.  Army Regulation 635-200 was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service was 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.

CONCLUSIONS:

1.  The evidence of record shows that the applicant’s administrative separation on 8 July 1971 was accomplished in accordance with regulations then in effect.

2.  However, the general discharge appears to be unduly harsh considering that the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army.

3.  Consequently, it appears that the above-mentioned memorandum should be applied to this case and that his discharge should be upgraded to honorable.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 3 March 1970.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 3 March 1970, in lieu of the general discharge of the same date held by him.

BOARD VOTE:  

___alr___  ___jhl ___  ___le ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Joann H. Langston____
		        CHAIRPERSON

INDEX

CASE ID | AR2002075898
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/02/20
TYPE OF DISCHARGE | GD
DATE OF DISCHARGE | 1970/03/03
DISCHARGE AUTHORITY | AR 635-212
DISCHARGE REASON | 547
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1.  547 | 144.4000
2. |
3. |
4. |
5. |
6. |