PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002073389


         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
Mr. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelly		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 that his discharge be upgraded.

3. The applicant states, in effect, that he was young and immature at the time of the offenses. He states that he has matured and realizes that his conduct was inappropriate.

5. The applicant's record contains several counseling statements for poor personal hygiene, leaving details, and poor attitude. Many of the statements stating that the applicant had to be ordered to and supervised to insure that he bathes and/or washed his clothing.

6. On three occasions the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for 2 periods of less than 24 hours and one period of about 29 hours.

7. On 23 February 1962, a summary court-martial found him guilty of being AWOL from 0100 hours to 0445 hours on 4 February 1962.

8. The applicant again went AWOL on 4 March 1962 and was apprehended by military police on 16 May 1962. He was placed in pretrial confinement pending a determination as to whether or not he would be charged with desertion.

9. On 30 June 1962, when it was decided that he would not be tried for desertion, he was released from confinement and restricted to his company area pending his trial.

10. The applicant broke restriction on 4 July and again on 12 July 1962 when he went AWOL. He remained AWOL until his apprehension by the military police on 17 July 1962. He was again placed in pretrial confinement until his court-martial.

11. On 26 July 1962, a special court-martial found him guilty of 72 days AWOL.

12. On 9 August 1962 the applicant underwent a psychiatric evaluation. The psychiatrist found the applicant to be oriented, rational, and coherent. The applicant gave no evidence of abnormal thinking or behavior suggesting a psychosis. The applicant was described as having the mental capacity to understand and participate in board proceedings and was considered mentally responsible for his acts. The examining psychiatrist noted that the applicant was eligible for separation under Army Regulation 635-209, but was considered cleared psychiatrically for any administrative disposition deemed appropriate by his command. The diagnosis section of the psychiatric report lists a diagnosis of moderate chronic passive aggressive reaction, which had existed prior to service.

13. On 2 October 1962 the company commander initiated action to administratively discharge the applicant with a general discharge under Army Regulation 635-209. The applicant acknowledged and waived his rights to counsel, to make a statement on his own behalf, to have his case heard by a board of officers.

14. The discharge authority, the battalion commander, approved the request for discharge under Army Regulation 635-209 and directed that the applicant receive a general discharge.

15. The applicant was separated on 3 November 1962 with a general discharge. His DD Form 214 (Report of Transfer or Discharge) lists the reason and authority for discharge as Army Regulation 635-209 with an SPN (separation program number) of 264 (character and behavioral disorder, or personality disorder). He had 2 years and 25 days of creditable service with 197 days lost due to AWOL and confinement.

16. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander’s opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual’s psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate.

17. 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 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.

CONCLUSIONS :

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with the applicant's overall record of military service.

2. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 18 years of age, had satisfactorily completed training and had served for over a year before any negative incidents are documented. His satisfactory performance demonstrates his capacity to serve.

3. Although the applicant's discharge was proper and the Board did not find the applicant's arguments convincing by themselves, the enactment of the Brotzman and Nelson Memoranda require application of the revised standards. The discharge should be upgraded to honorable.

4. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION :

That all of the Department of the Army records for the individual concerned related to this case be corrected by voiding the 3 November 1962 general discharge and issuing him an honorable discharge of the same date.

BOARD VOTE :

_ TAP ____ __ RWA _ _ JAK ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Thomas A. Pagan________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002073389
SUFFIX
RECON
DATE BOARDED	20030311
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	144.26
2.	144.42 Current standards - Nelson/Brotzman
3.	144.9301
4.
5.
6.