RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070016443 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 the narrative reason for his separation be changed.

2.  The applicant states that he has been in the Merchant Marine Service since his separation from the United States Army in 1958.  He received a Shipboard Officer’s License in June 1967, and has obtained the highest level "Grade Master’s License Oceans Unlimited."  He does not believe he should have been discharged from the Army for "unsuitability."  He further states that it would take a psychologist many sessions to make such a determination if a person had an unsuitability character and behavior disorder.   The applicant served for less than 1 year.  He feels this characterization is unjust and reflects [badly] on him.  He is a model citizen who is progressing to higher levels of achievement with a government regulated organization. 

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214) and his Master Licenses.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 16 September 1957, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 723.10 (Teletype Operator).  He was subsequently assigned for duty at Fort Dix, New Jersey.




3.  On 30 July 1958, the applicant underwent a neuropsychiatric examination by a licensed psychiatrist.  The examination showed a diagnosis of passive aggressive personality, severe (a character and personality disorder).  The psychiatrist recommended that he be separated from the service under the provisions of Army Regulation 635-209.

4.  On 5 August 1958, a board of officers determined that he was unsuitable for further service and recommended that he be discharged from the service because of character and behavior disorders. 

5.  Accordingly, on 28 August 1958, the applicant was discharged under the provisions of Army Regulation 635-209 for unsuitability.  His characterization of service was under honorable conditions.  His Separation Program Designator Code (SPD) was 264 and his narrative reason for separation was unsuitability character and behavior disorder.  He had served 11 months and 13 days of creditable active service.

6.  On 29 September 1999, this Board considered the applicant’s request for an upgrade of his discharge.  The applicant provided essentially the same argument and evidence as he has provided with this case.  The Board determined that based on a subsequent revision of Army Regulation 635-200, the applicant’s characterization of service was too harsh.  The Board upgraded the applicant’s discharge to honorable.  The Board did not determine that the authority or reason for his discharge was in error.   

7.  Army Regulation 635-209 (Personnel Separations), 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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.  

8.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR reviewed the applicant's discharge and made a deliberate determination, based on a subsequent revision of the governing regulation, that the characterization was too harsh.   At the same time, it did not find fault with the original reason for his discharge.

2.  Any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  Accordingly, the applicant was diagnosed with a personality disorder.  The applicant has not provided substantiating evidence to overcome this diagnosis and has not provided a convincing argument of any error.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
 




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ JBG __  __RSV __  __DWS _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.






__    James B. Gunlicks __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.