PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 February 2003
         DOCKET NUMBER: AR2002074233


         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. Jessie B. Strickland		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.

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2. The applicant requests that his general discharge be upgraded to reflect that he was honorably discharged by reason of physical disability with entitlement to all retroactive benefits and allowances, or as a minimum that it be upgraded to honorable.

3. The applicant states, in several letters of explanation attached to his application, in effect, that he should have been medically discharged from the Army because he was diagnosed with a character and behavior disorder that was the result of his military service and that has resulted in a permanent inability to maintain gainful employment. He further states that the military caused his medical and mental problems and there is no evidence to show that it existed prior to his entry into the service. Consequently, the Department of Veterans Affairs has awarded him a disability rating of 100%. In support of his application he submits a copy of his VA Rating Decision, a copy of a report of investigation (DD Form 261), and a copy of a letter from his family doctor listing his childhood medical history.

4. The applicant’s military records show that he was single at the time he enlisted in Parkersburg, West Virginia, on 9 March 1972, for a period of 3 years and assignment to Fort Campbell, Kentucky. He completed his training and was transferred to Fort Campbell on 17 July 1972, for duty as a mechanical maintenance helper.

5. On 27 October 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 16 October to 27 October 1972. His punishment consisted of a reduction to the pay grade of E-1 (suspended for 30 days), a forfeiture of pay, extra duty and restriction.

6. On 15 December 1972, NJP was imposed against him for being AWOL from 15 November to 11 December 1972. His punishment consisted of a forfeiture of pay and restriction.

7. The applicant again went AWOL from 26 February 1973 to 28 February 1973. The record is silent as to any punishment imposed for that offense.

8. He again went AWOL on 27 August 1973 and remained absent until he was admitted to a civilian hospital in Marietta, Ohio, on 6 September 1973, where he was diagnosed as having acute depressive reaction with suicidal tendencies. He was subsequently transferred to a hospital at Fort Knox, Kentucky, on 21 September 1973. A line of duty investigation was conducted and a finding of “Not in line of duty – Not due to own misconduct” was made. He was disgnosed as having an emotional unstable personality.

9. He underwent a psychiatric evaluation on 1 November 1973 and was diagnosed as having a character and behavior disorder. The examining psychiatrist indicated that the applicant was a 20 year old married male with a long history of impulsive behavior and emotional problems. He has been essentially non-functional in the Army for the past 6 months because of family problems that he has been unable to deal with. He also made two impulsive suicide attempts because of his inability to cope with his situation. He recommended against further rehabilitation and recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 13.

10. The applicant also underwent a physical/medical examination and was deemed fit for retention on active duty.

11. On 28 November 1973, the applicant’s commander initiated a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. He cited as the basis for his recommendation, the applicant’s diagnosis and frequent display of character and behavior disorders.

12. After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

13. The appropriate authority approved the recommendation on 17 December 1973 and directed that he be furnished a General Discharge Certificate.

14. Accordingly, he was discharged under honorable conditions on 28 December 1973, under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, due to a character and behavior disorder. He had served 1 year, 7 months and 20 days of total active service and had 61 days of lost time due to AWOL.

15. There is no indication in the available records to show 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.

16. Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. An individual could be found unsuitable if diagnosed with a personality disorders by a physician trained in psychiatry.

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 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 court-martial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge.

18. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

19. Army Regulation 40-501 provides policy and procedures on medical fitness standards for induction, enlistment, appointment and retention. Paragraph 3-35 states, in pertinent part, that personality, sexual or factitious disorders; disorders of impulse control not elsewhere classified, and psychoactive disorders, may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels.

20. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

CONCLUSIONS:

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

2. However, the applicant had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently.
3. Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

4. The applicant’s contention that he should be discharged by reason of medical disability has been noted and found to be without merit. At the time of his discharge he was found to be medically fit for separation and he has failed to show through the evidence of record or the evidence submitted with his application that such was not the case.

5. Although the applicant may have subsequently been granted a disability rating by the Department of Veterans Affairs, that is a prerogative exercised within the policies of that agency and does not, in itself, establish any entitlement to disability compensation or medical retirement from the Department.

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 separated from the service with an Honorable Discharge Certificate on 28 December 1973.

2. That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 28 December 1973, in lieu of the general discharge of the same date held by him.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:


___alr___ __jhl ____ ___le ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ____Joann H. Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074233
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/20
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1973/12/28
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	UNSUIT/C&B
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 756	144.8600/A86.00
2.
3.
4.
5.
6.