IN THE CASE OF:	

		BOARD DATE:	

		DOCKET NUMBER:  AR20080007309 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under honorable conditions be upgraded to a medical or an honorable discharge.

2.  The applicant states that he feels his discharge should have been a medical discharge or honorable discharge because he did serve his country.

3.  The applicant provides his separation document (DD Form 214) and his Department of Veterans Affairs (VA) rating decision, with allied documents, which show that he filed a claim for VA disability which was received on 19 July 2006, and resulted in him being awarded a 10 percent disability rating for anxiety disorder.

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.  The applicant's military personnel record shows he was inducted and entered active duty on 22 June 1970.  

3.  The applicant accepted nonjudicial punishment (NJP) on 16 May and 11 August 1971, for disobeying a lawful command and committing an assault on another soldier.

4.  The applicant received a mental status evaluation at his commander’s request.  The battalion surgeon diagnosed the applicant with a passive aggressive personality disorder with chronic anxiety, and hyperventilation syndrome secondary to his personality disorder.

5.  On 16 August 1971, the applicant acknowledged that his commander had notified him that he was being recommended for separation from the service for unsuitability under the provisions of Army Regulation 635-212 and that he was entitled to present his case before a board of officers, submit any statement in his behalf, and to be represented by counsel.  The applicant waived those rights.

6.  On 14 July 1971, the applicant's commander recommended his discharge for reasons of unsuitability under the provisions Army Regulation 635-212.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for character and behavior disorder and directed the applicant to be furnished a General Discharge Certificate.

7.  On 7 October 1971, the applicant was discharged for unsuitability under the provisions of Army Regulation 635-212.  He had completed 1 year, 3 months and
16 days active service that was characterized as under honorable conditions. 

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

9.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 

10.  Army Regulation 635-200 (Personnel Separations) 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. 

11.  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.

12.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

13.  Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under honorable conditions should be upgraded to an honorable discharge.

2.  The applicant was discharged due to unsuitability, character and behavior disorder due to his personality disorder, and he had not been convicted by a court-martial.  As such, in accordance with the Nelson Memorandum, he is entitled to have his discharge upgraded to fully honorable.  

3.  The applicant is not entitled to a medical discharge since he was never determined to be medically disqualified for retention while on active duty.  The fact that he was awarded a VA disability as a result of his application for a disability rating dated almost 35 years after his discharge does not establish that he had a medically disqualifying condition while he was on active duty.

BOARD VOTE:

__X_____  ___X____  ___X___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was issued an Honorable Discharge Certificate on 7 October 1971 for unsuitability, character and behavior disorder.




      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007309



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ABCMR Record of Proceedings (cont)                                         AR20080007309



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