PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 August 2003
         DOCKET NUMBER: AR2003086257


         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:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		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 an honorable discharge.

3. The applicant states that at the time that he enlisted in the Army, he was guaranteed by his recruiter that he would complete his basic combat training and his advanced individual training at Fort Ord, California; that he would receive training to become a motor transport operator; and that he would be transferred and stationed at Hunter Liggett, California upon completion of his military occupational specialty (MOS) training. He states that after he completed his training, he was told that he would be assigned to a cook position because there were no available positions for his MOS. He states that when he learned that he was going to be retrained to cook food instead of driving trucks he believed that he had been betrayed. He states that he had no legal advice and that he had no idea how to deal with the problem so he got on a bus and went to San Jose. He states that he did not know that he could have enforced the terms of his enlistment guarantee and he didn’t believe that he would ever be transferred to Hunter Liggett to drive trucks, so he decided to go absent without leave (AWOL).

4. He goes on to state that he was only 18 years old and he had no one to fight for him and when he returned from being AWOL the staff attorney told him that the only way he could receive a general discharge was to sign a bar to reenlistment and waive all of his military benefits. He states that since he left the Army he has completed high school; become self employed; and obtained a B-General Contractors License. He concludes by stating that he would like his discharge upgraded so he can apply for an educational loan to get the training he needs to become a termite inspector. In support of his application he submits copies of his educational certificates.

5. The applicant’s military records show that on 30 October 1972, he enlisted in the Army in Oakland, California, for 3 years in the pay grade of E-1. His enlistment contract shows that he enlisted under the United States (US) Army Special Unit of Choice Enlistment Option with training as a truckmaster and assignment to the US Army Combat Development Experimental Plan. He went on to complete basic combat training at Fort Ord, California.

6. He went on to successfully complete his basic combat training at Fort Ord, California, and he was in advanced individual training (AIT) at Fort Ord when nonjudicial punishment (NJP) was imposed against him on 12 March 1973, for being AWOL from 5 March until 9 March 1973. His punishment consisted of an oral reprimand, a forfeiture of pay, restriction and extra duty.





7. On 17 April 1973, NJP was imposed against him for being AWOL from 2 April until 16 April 1973. His punishment consisted of a reduction in pay grade, an oral reprimand, a forfeiture of pay, restriction and extra duty.

8. On 30 April 1973, the applicant was referred for a psychiatric evaluation. The psychiatrist noted that the applicant claimed to have gone AWOL the first time because he was bored and could not adapt to military life and that he went AWOL the second time because he wanted to get out of the Army. The psychiatrist’s impression was that the applicant appeared to be immature as well as manipulative and that the manipulation was to the extent of obtaining a discharge from the service.

9. The applicant underwent a mental status evaluation on 20 April 1973 and was diagnosed as having a character and behavior disorder (immature personality).

10. On 15 May 1973, the applicant was furnished a locally imposed bar to reenlistment. His commanding officer based the recommendation for the bar to reenlistment on his inability to meet Army standards for academic performance and a character and behavior disorder.

11. On 7 May 1973, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability based on a personality disorder. He acknowledged receipt of the notification and after consulting with counsel, he waived his right and he opted not to submit a statement in his own behalf.

12. The appropriate authority approved the recommendation for discharge on 10 May 1973. Accordingly, on 23 May 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, based on a personality disorder. He had completed on 6 months and 6 days of total active service and he had 18 days of lost time due to AWOL. He was furnished a General Discharge Certificate.

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.






14. 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 (formerly character and behavior 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 applicant was properly discharged in accordance with the applicable regulation then in effect.

2. The Board has noted the applicant’s contentions regarding a broken enlistment commitment. However, they are unsubstantiated by the evidence of record. The evidence of record shows that he was at Fort Ord, California, in AIT when he went AWOL for the first time. The Army was honoring its portion of the enlistment contract until he went AWOL as a result of his inability to adapt to military life. He failed to complete his AIT prior to be discharged; therefore, the Army never had the opportunity to fully honor the terms of his enlistment contract.

3. Nevertheless, prior to his discharge, the applicant was diagnosed by a physician trained in psychiatry as having a character and behavior disorder that existed prior to service.

4. He had NJP imposed against him twice for being AWOL and he had no
court-martial convictions. He was discharged for unsuitability after being diagnosed as having a character and behavior disorder and under today’s standards he would have received a fully honorable discharge.

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

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was honorably discharged from the Army on 23 May 1973 and that he be furnished an Honorable Discharge Certificate.

BOARD VOTE:

__wdp___ __tsk ___ ___fcj___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Ted S. Kanamine____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086257
SUFFIX
RECON
DATE BOARDED	2003/08/12
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1973/05/23
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	730
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 756	144.8600/PERSONALITY DISORDER
2. 763	144.8607/NO REASON FOR LESS (HD)
3.
4.
5.
6.