IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010137 


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 that his general discharge (GD), under honorable conditions be upgraded to a honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded due to extenuating circumstances.  He does not explain what the "extenuating circumstances" were.

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 29 September 1972, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 16 October 1972, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  A review of the applicant's pre-induction physical, dated 1 August 1972, shows he reported a history of depression or excessive worry.  Based on this report, the applicant was referred for consultation by a psychologist to determine whether he met the medical standards for enlistment. 

3.  The clinical psychologist (Dr. J____ S____) indicated that in his professional opinion the applicant was unfit for military duty and that he was not capable of handling the pressures and demands of the military.  This determination was based on a diagnosis of an inadequate personality.  This diagnosis was based on test results showing the applicant as a very weak, emotionally inadequate individual who lacked the capacity to adequately deal with problems or pressures, and who tended to run from them.  The test results also suggested the applicant was very passive, dependent and was unable to adequately plan or carry out plans made for him.  He appeared to lack the capacity to differentiate between the essential and unessential aspects of his life, his judgment capabilities were weak, and his self-concept was such that he took a negative attitude towards everything relating to himself.

4.  Notwithstanding the above clinical psychologist report, there is another psychiatric consultation in the applicant's official record.  This consultation is recorded on a Standard Form 513 (Consultation Sheet) and on the right bottom corner of this form the following notation was made:  "DX mild ____(illegible) passive-aggressive personality/acceptable for military service."  This consultation also indicates that the applicant was passive, dependent, with somewhat of a guarded manner, somewhat depressed, but nothing to suggest mental illness.  There was a moderate amount of character problem (sic), the examiner noting "I would call him passive-aggressive personality, passive type.  The question is how severe.  I believe there is a good chance he can serve without serious difficulty.  Recommend – accept for military service.  His Standard Form 88 (Report of Medical Examination) notes "#42 (Psychiatric) consult – finds qualified – acceptable."   

5.  The applicant successfully completed basic combat training.  He encountered difficulties while at advanced individual training for military occupational specialty (MOS) 71B (Clerk Typist).  On 12 March 1973, the applicant's chain of command referred him to the Mental Hygiene Clinic for evaluation for retention standards.  The Chief, Mental Hygiene indicated that the applicant met the requirements for 


administrative separation for unsuitability and left the disposition of the applicant's case to the applicant's command.  The applicant was diagnosed with a character/behavior disorder, mixed type, chronic, moderate; manifested by immaturity and inadequacy in coping mechanisms, impulsive behavior, passive dependency.  Evidence in the interview indicated the applicant had immature coping mechanisms and impulsive behavior.  

6.  On 10 March 1973, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent from his unit.  A copy of the Article 15 was not contained in the official record.  

7.  On 16 March 1973, a summary court-martial convicted the applicant of being absent without leave (AWOL) from 16 January – 16 February 1973.  The resultant sentence included hard labor without confinement for 14 days, 14 days restriction, and a forfeiture of $100.00 pay. 

8.  On 28 March 1973, the unit commander initiated discharge proceedings under the provisions of chapter 13-5b, Army Regulation 635-200, by reason of unsuitability.  The commander indicated that the applicant went AWOL and upon his return he provided him [the unit commander] with 3 letters from a civilian psychologist recommending he be discharged due to his inability to cope with the pressures of military service.  He also indicated that the applicant had been counseled on numerous occasions in reference to his negative attitude, and that he had made no effort to rehabilitate himself.  One of the letters the applicant presented to the unit commander was from Dr. J_____ S_____, dated 
24 January 2007, stating that the applicant had contacted him while AWOL, and he [the doctor] urged him to return to his post immediately, and to request a psychiatric examination.  Dr. S____ stated "[The applicant] states that his depressions have continued, actually getting worse.  This problem, and reaction to it, is pretty much inkeeping (sic) with the direction that I mentioned in my letter to you [the unit commander] on 1-6-73 (copy enclosed), in which I expressed concern that 'escape' would become his way of coping with the problem.  My original recommendation (7-24-72) was that this man was not able to cope with the demands of the military.  I feel that to continue him in the service will result in irreparable harm."  

9.  On 28 March 1973, the applicant acknowledged notification, waived his right to consult with legal counsel, and waived consideration of his case by a board of officers.  He did not submit a statement in his own behalf.



10.  On an unknown date, the separation authority approved the applicant's discharge and directed he receive a GD.  

11.  Accordingly, on 12 April 1973, the applicant was discharged under the provision of chapter 13-5, Army Regulation 635-200 with a GD.  He was credited with 4 months and 29 days of active military service and 29 days of lost time due to being AWOL.  

12.  Army Regulation 635-200, then in effect, set forth the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unsuitability, and provided, in pertinent part, that commanders would separate a member under the chapter when, in the commander's judgment, the member would not develop sufficiently to participate in further training and/or become a satisfactory Soldier.  Under the provisions of this regulation, individuals discharged for unsuitability would be furnished an honorable discharge or a GD.

13.  A Department of the Army (DA) message #30221Z, dated March 1976, changed "character and behavior disorder" to "personality disorder" and Army Regulation 635-200 was revised on 1 December 1976.  A DA 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.  AR 635-200, Chapter 5, Paragraph 5-13, currently in effect, provides that when an individual is separated by reason of a personality disorder, his or her service will be characterized as honorable unless in entry-level status.  Characterization of service under honorable conditions may be awarded to individuals who have been convicted of an offense by general court-martial or who have been convicted by more than one special court-martial during a current enlistment discharge was proper and equitable and voted not to change it.

15.  Army Regulation 635-200, paragraph 3-7, 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.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his GD be upgraded to an honorable discharge.

2.  At the time of his discharge, the applicant was properly separated under the provisions of Army Regulation 635-200, chapter 13-5b, by reason of unsuitability, due to a character and behavior disorder.  

2.  Notwithstanding the propriety of the applicant's discharge, the evidence of record shows that during his pre-induction physical, he reported a history or depression and anxiety.  He was referred to 2 different psychologists on consultation.  One psychologist, Dr. J_____ S____ found the applicant unfit for military duty and expressed his professional opinion that the applicant would not be able to cope and/or adjust to military life because of his inadequate personality disorder.  The other psychologist indicated that he had a passive-aggressive personality disorder, but that there was a "good chance" he could serve without serious difficulty. 

3.  Based on the latter recommendation above, the applicant was accepted for enlistment.  Within a few months of enlistment, the applicant encountered difficulties, to include receiving an Article 15 and a summary court-martial for being AWOL.  He was referred to another psychologist at the Mental Health Clinic to determine whether he met medical retention standards.  This psychologist found that the applicant met the requirements for administrative separation for unsuitability and left the disposition of the applicant's case to the applicant's command.  However, he diagnosed the applicant with a character/behavior disorder, mixed type, chronic, moderate; manifested by immaturity and inadequacy in coping mechanisms, impulsive behavior, and passive dependency.  This diagnosis was in concert with Dr. J____ S____ who had previously opined that the applicant would not be able to cope with military service.  

4.  The preponderance of medical evidence shows the applicant was a recruitment risk and that his ability to serve was seriously impaired by a long-standing character disorder.  Although he was ultimately cleared for enlistment based on a determination that he had a "good chance" of serving without difficulty, not surprisingly the applicant demonstrated the type of behavior consistent with his diagnosis.  The Army had advance knowledge that the applicant was a risk and only had a chance of success.  Therefore, it is unjust that he alone suffers the long-term consequences associated with his type of discharge.  Further, in accordance with the changes in governing regulations regarding character and behavior disorders, the applicant's disciplinary record did not rise to the level that supports a GD. 

5.  Given the above, and in the interests of justice, the applicant's record should be corrected to show that he was separated on 12 April 1973 with an honorable characterization of discharge.  

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 he was discharged on 12 April 1973 with an honorable characterization of discharge.




      ___        XXX                ___
                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)                                         AR20080010137



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ABCMR Record of Proceedings (cont)                                         AR20080010137



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