RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060010277 


	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. Michael j. Fowler

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. David K. Hassenritter

Member

Mr. Ronald D. Grant

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be changed from general (under honorable conditions) to an honorable discharge.

2.  The applicant states, in effect, that he was told after a certain amount of time he could get his discharge changed and now he would like it changed. 

3.  The applicant provides a general discharge certificate, dated 5 June 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 5 June 1970.  The application submitted in this case is dated 15 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 8 April 1970 for a two year term of service and did not complete basic training.  

4.  On 6 May 1970, the applicant underwent a psychiatric evaluation by a military psychiatrist who diagnosed the applicant with "Passive-aggressive personality disorder, severe."  The military psychiatrist determined that the applicant could distinguish right from wrong and adhere to the right, that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and that the applicant had the mental capacity to understand and participate in board proceedings.  The military psychiatrist noted that the applicant had been nervous, angry, and depressed since coming into the Army.

5.  On 12 May 1970, the applicant's company commander initiated a request for discharge under the provisions of Army Regulation 635-212 (Discharge Unfitness and Unsuitability).  

6. On 12 May 1970, the applicant consulted with the Defense Counsel at Fort Leonard Wood, Missouri.  The applicant was advised of his rights and the effect of a waiver of those rights.
7.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel, that he waived consideration of his case by a board of officers, that he did not provide statements on his own behalf, and that he waived representation by military counsel.

8.  The applicant also indicated he was aware that as a result of the issuance of an undesirable discharge he may be ineligible for any or all benefits as a veteran under both Federal and state laws, and that he may expect to encounter substantial prejudice in civilian life based on an unsuitability discharge.

9.  On 19 May 1970, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-212, for unsuitability.  The reason cited by the commander was that a psychiatric evaluation determined that the applicant possessed a severe passive-aggressive personality disorder and that the applicant appeared very nervous and ill-at-ease. He seemed to be continually depressed, and in his state at the time could not perform satisfactorily.

10.  The applicant’s records contain no other evidence of any adverse information or disciplinary actions taken against him.

11.  On 25 May 1970, the appropriate authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212.  On 
5 June 1970, he was discharged with an unsuitability discharge after completing 1 month and 28 days of creditable active service with no time lost.  Item 13a (Character of Service) of the applicant's DD Form 214 show the entry "UNDER HONORABLE CONDITIONS."

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, inability to expend effort constructively, alcoholism, and enuresis.  A general under honorable conditions characterization of service was normally appropriate.

13.  Army Regulation 635-200, which superseded 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 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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation on 5 June 1970 was accomplished in accordance with regulations then in effect.

2.  However, policy was later changed to provide a fully honorable separation for a Soldier separated by reasons of personality disorder when there were no clear and demonstrable reasons to do the otherwise.  The applicant’s records contained no evidence that he was subject to any adverse or disciplinary actions during his brief period of service.  Under current policy, it appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as provided for by the above-referenced Army memorandum.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 June 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
4 June 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence it would be in the interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

__JCR __  __DKH_ _  __RDG__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  showing he was separated from the service with an Honorable Discharge Certificate on 5 June 1970; 

	b.  issuing an Honorable Discharge Certificate, dated 5 June 1970, in lieu of the general discharge of the same date now held by him; and 

c.  issuing him a new DD Form 214 reflecting the above correction.




____ Jeffrey C. Redmann _
          CHAIRPERSON




INDEX

CASE ID
AR20060010277
SUFFIX

RECON

DATE BOARDED
8 FEBRUARY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY
MR. SHATZER
ISSUES         1.
144.0153.0000
2.

3.

4.

5.

6.