IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080007534 


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 an honorable discharge.

2.  The applicant states, in effect, that he feels guilty now and then about his actions or lack of actions and commitment to his country and to himself in the past.  He further states he has matured over the years and has been a positive member of society while being active in his community.  He further states he has received a master’s degree and he recently retired from a successful career.  He states he should have displayed this same attitude and maturity when he was a member of the Armed Forces.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 enlisted in the Regular Army on 6 November 1961 for a period of 3 years.  He successfully completed basic combat training.  However, he did not complete advanced individual training.

3.  On 8 December 1961, the applicant received a neuropsychiatric examination by a captain in the Medical Corps, a psychiatrist.  The examiner diagnosed the applicant with a schizoid personality that existed prior to service.  The examiner determined the applicant's symptoms and/or unmilitary behavior were a repetition of a demonstrable life-long pattern of defective adjustment.  The examiner further determined that the applicant's condition was not amenable to hospitalization, treatment, disciplinary action training, transfer to another organization or station, or reclassification to another type of duty.  The examiner determined the applicant's condition did not warrant separation from service under the provisions of current medical discharge regulations.  The examiner noted the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  The examiner recommended the applicant be separated for unsuitability.

4.  On 20 February 1962, the applicant received a neuropsychiatric examination by a captain in the Medical Corps, a neuropsychiatrist.  The examiner noted the applicant had no obvious disease or disorder but that his gross immaturity and rebellious attitude made him of little use to the service.  The examiner determined the applicant possessed sufficient mental capacity to know the difference between right and wrong and was able to adhere to the right and refrain from the wrong, was mentally responsible for his acts, and had the mental capacity to understand and participate in board proceedings.  The examiner recommended the applicant be separated from the service for unsuitability. 

5.  On 7 March 1962, 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 635-209 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 military counsel appointed by the convening authority, military counsel of his own choice, provided the requested counsel is reasonably available or civilian counsel at his own expense.


6.  The applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-209 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.   
7.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

8.  On 7 March 1962, the applicant's commander recommended his discharge for reasons of unsuitability under the provisions Army Regulation 635-209.  The commander noted that the applicant's gross immaturity and rebellious attitude made him of little use to the service.

9.  There is no record of indiscipline in the applicant's military personnel record.

10.  On 8 March 1962, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-209 and directed the applicant to be furnished a General Discharge Certificate.

11.  On 16 March 1962, the applicant was discharged for unsuitability under the provisions of Army Regulation 635-209.  He had completed 4 months and
11 days active service that was characterized as under honorable conditions. 

12.  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.

13.  Army Regulation 635-209 (Personnel Separations, Discharge, Unsuitability), 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.  

14.  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. 

15.  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.

16.  A memorandum, dated 21 January 1977, from the Military Review Boards Agency included schizoid personality under the overall heading of personality disorder.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant did not submit statements on his own behalf and he waived any representation by counsel.  

3.  The applicant was advised of the effects of a general discharge.  The applicant was afforded the opportunity to consult with counsel and submit statements in his own behalf, but he declined to do so.
4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

5.  The Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

6.  The Nelson Memorandum 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.  

7.  The applicant's military personnel record contains no disciplinary action whatsoever.  Therefore, it is appropriate to upgrade his discharge to honorable based on his personality disorder and the absence of substantial instances of indiscipline.

BOARD VOTE:

__X______  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the available evidence is not sufficient to warrant a recommendation for relief.  As a result the Board recommends that the individual’s request be denied.  Although no apparent disciplinary action was taken against him there was some reason, not noted, that compelled the commander to believe it was necessary to send the individual for a psychiatric evaluation.  It is unclear that he had a “personality disorder” when he successfully completed basic combat training, and his PEB 62 Exam found no obvious disease or disorder.  A “General” discharge under honorable conditions is sufficient as to those who served during this time.





      _________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)                                         AR20080007534



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ABCMR Record of Proceedings (cont)                                         AR20080007534



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