PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002075898


         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:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 retired by reason of physical disability with entitlement to all retroactive benefits and allowances.

3. The applicant states, in effect, that he should have been medically retired 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 goes on to state that his experiences in Germany which consisted of his being in a heightened state of combat readiness, constant training, military maneuvers, live fire exercises, and pressure from his peers to use drugs and alcohol, with much racial bigotry, caused him to suffer from what is commonly known as combat shock. He also states that had he been properly diagnosed, he would have been medically retired. He also states that under current standards, he would be entitled to medical retirement and upgrade of his discharge. His counsel requests that the Board grant him favorable consideration of his application using current standards.

4. The applicant’s military records show that he enlisted in St. Louis, Missouri, on 1 October 1971, for a period of 3 years. He completed his training, was advanced to the pay grade of E-3 on 5 May 1972 and was transferred to Baumholder, Germany on 23 May 1972, for duty as an armor crewman. He was advanced to the pay grade of E-4 on 3 July 1972.

5. On 6 November 1972, nonjudicial punishment was imposed against him for being drunk and disorderly. His punishment consisted of a reduction to the pay grade of E-2.

6. Although the specifics are not contained in the available records, the applicant was reduced to the pay grade of E-1 on 28 November 1972.

7. On 8 March 1973, he was convicted by a special court-martial of two specifications of failure to repair, disrespect towards a superior noncommissioned officer (NCO), assault upon a NCO, failure to obey a lawful order from an NCO, two specifications of failure to obey lawful orders from a commissioned officer, and assault upon a commissioned officer with a means to produce grievous bodily harm. He was sentenced to confinement at hard labor for a period of 5 months, a forfeiture of pay and a bad conduct discharge.

8. He was transferred to the Army Retraining Brigade (USARB) at Fort Riley, Kansas, on 26 April 1973, to serve his confinement. While at the USARB, he was reassigned to five different units.

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9. On 12 May 1973, while on emergency leave, the applicant admitted himself to a Veterans Administration Hospital in St. Louis, Missouri. He had complaints of delusions and hallucinations and gave a history of drug use. He was advised to stay in the hospital for further evaluation and treatment, however, he checked himself out of the hospital after 2 days.

10. On 5 July 1973, the applicant underwent a psychiatric evaluation (by a psychiatrist) and was deemed to be unsuitable for further military service due to a character and behavior disorder. The psychiatrist determined that there was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels and that he was mentally competent to participate in board proceedings.

11. The applicant underwent a medical/ physical examination and mental status evaluation between 13 July and 15 July 1973 and was found fit for separation.

12. On 20 July 1973, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to a character and behavior disorder. He cited as the basis for his recommendation, the applicant’s disciplinary record, his diagnosed character and behavior disorder, his receipt of numerous adverse observation reports and his failure to respond to numerous counseling sessions and rehabilitation attempts.

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

14. The appropriate authority approved the recommendation on 23 July 1973 and directed that he be furnished a General Discharge Certificate.

15. Accordingly, he was discharged under honorable conditions on 25 July 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, 4 months and 25 days of total active service and had 150 days of lost time due to imprisonment.

16. 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.

17. 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.
18. 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.

19. 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.

20. 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.

21. 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.

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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 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 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 retired 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 25 July 1973.

2. That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 25 July 1973, in lieu of the general discharge of the same date held by him.

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

BOARD VOTE:

___mm __ __js ____ __jm____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ____John N. Slone______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075898
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/25
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1973/07/25
DISCHARGE AUTHORITY	AR635-200/ch13
DISCHARGE REASON	Unsuit/C&B
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 756	144.8600/a86.00
2. 177	108.0000/dis ret
3.
4.
5.
6.