PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2001063627


         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. Maria C. Sanchez		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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.

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2. The applicant requests an upgrade of his discharge.

3. The applicant states in effect, he knows he made a mistake 32 years ago and he has paid for it his whole life. He states he needs eyeglasses and he is dealing with cancer. He only receives $220.00 a month and would appreciate anything that could be done to help him receive assistance with is medical care. Submitted with his application is an undated letter from a friend who attests that he is the applicant’s neighbor and that he has known him for several years and knows the applicant is a good man. He states the applicant was a good worker and absolutely never used drugs or alcohol. He says that the applicant lost the fingers on his right hand, then the loss of his hearing in his right ear, then he acquired meningitis twice in 9 months that caused a stroke in his right side, and he takes medicine for seizures. Finally, he says the applicant has now been diagnosed with cancer and cannot take care of himself with the money he receives each month.

4. The applicant’s military records show that he was 21 years old, from Kentucky, with a sixth grade education, and unemployed when he was inducted on 27 February 1969. The records show that he scored 11 on his Armed Forces Qualification Test (AFQT) and that he was considered a Category IV inductee. After he completed basic combat training, and advanced individual training, he was assigned to Alaska on 27 June 1969, and on the same date he was advanced to the pay grade of E-2.

5. Two months after his arrival in Alaska, he was found to be absent without leave (AWOL). Approximately 9 months later he was apprehended in Paris, Kentucky and returned to military control on 10 June 1970. His commander preferred court-martial charges on 5 July 1970. The applicant consulted with counsel on 26 August 1970, and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive. He indicated he understood he could be denied some or all veterans’ benefits as a result of his discharge and the he may be deprived of rights and benefits as a veteran under both Federal and State law. He did not submit any statements on his own behalf.

6. On 4 September 1970, a psychiatric examination was performed and the examining psychiatrist diagnosed the applicant as being “mentally disabled.” The history portion of the examination reveals that little was known of his military adjustment after he was drafted except that he had no previous disciplinary action. The applicant revealed that it had been difficult for him to adjust away from home and that he was concerned about his parent’s financial problems since they lost their tobacco farm in Kentucky. He states he went AWOL to help clear up some of the financial problems. The mental status examination showed that he appeared as an alert and cooperative, however anxious, apprehensive and depressed 21 year old. He demonstrated a significantly below average intelligence, his affect was mildly depressed with no indications to suggest a thought process disorder. The findings and conclusions were that the applicant had compromised intellectual capabilities and that it was a part of his character and was not a manifestation of a psychiatric illness. The compromised intellectual capabilities rendered him extremely vulnerable, and easily taken advantage of and he probably did not fully understand what was expected of him in the military. Further, at times the confusion and resulting vulnerability could render him not completely responsible for his actions although at the time he appeared to be reasonably mentally competent and aware of his actions and responsibilities. He was capable of cooperating with his own defense, and in need of very careful supervision and the understanding of his limitations by his counsel. In conclusion the report goes on to relate that it is very doubtful that any punitive measures would be effective in creating any significant changes in his life style and would not serve any rehabilitative value and that rehabilitative efforts would be fruitless and only further delay separation. In view of the applicant’s personality and character disorder, the examining psychiatrist recommended strongly that the applicant be given a general discharge for unsuitability under the provisions of AR 635-212.

7. On 10 September 1970, the commander recommended that in view of the lengthy period of absence without leave and the irresponsible disregard for military authority, that the applicant be discharged under the provisions of AR 635-200, chapter 10. On 18 September 1970, the separation authority approved the request and directed that an undesirable discharge be issued. On 26 September 1970, the applicant was separated under the provisions of AR 635-200, chapter 10. He had 1 year and 7 months creditable service and over 250 days lost time.

8. Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. 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.

9. Army Regulation 635-200, the regulation that superceded 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 was to be determined solely by the individual’s military record during the current enlistment.
Further, any separation for unsuitability, based on a 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 upgrades 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 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 courtmartial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge.

10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

CONCLUSIONS:

1. The evidence of records shows that the applicant’s administrative separation on 26 September 1970 was accomplished in accordance with regulations then in effect.

2. However, the applicant’s limited education, test scores and mental deficiency clearly indicate that he was unsuited to military life. While his behavior is not condoned by the Board, the undesirable discharge appears to be unduly harsh considering that the evidence of record shows that he served to the best of his ability. It appears that due to his mental deficiency, as diagnosed by a psychiatrist, he was incapable of meeting the standards of the Army and was unable to comprehend and react to instructions in a manner that would be considered normal behavior for most soldiers.

3. The Board notes that at the time the applicant consulted with counsel, he had not taken the mental status examination and that it must be presumed that had counsel been aware of the results, he would have intervened on his client’s behalf or at least been able to better advise the applicant of his options.

4. While the applicant clearly was not suited for military service from the very beginning, the contrary to the recommendation of the psychiatrist, he was separated from the service with an undesirable discharge for the good of the service in lieu of trial by court-martial.

5. While the Board understands that it was the commander’s prerogative to accept the applicant’s request for discharge under chapter 10, given all of the circumstances in this case, the Board finds that he was unsuitable for military service, that the above mentioned memoranda should be applied to this case and that his discharge should be upgrade to honorable.

6. 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 discharged from the service with an Honorable Discharge Certificate on 26 September 1970.

2. That the Department of the Army issue to the individual concerned an Honorable Discharge Certificate dated 26 September 1970 in lieu of the Undesirable Discharge Certificate issued to him.

BOARD VOTE:

___sac__ ___mm__ ___rks __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Samuel A. Crumpler____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063627
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/01
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/09/26
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 189	110.0000/discharge
2.
3.
4.
5.
6.