IN THE CASE OF:	  

		BOARD DATE:	       18 September 2008

		DOCKET NUMBER:  AR20080010718 


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 be changed from general (under honorable conditions) to an honorable discharge and that he be issued an honorable discharge certificate.

2.  The applicant states, in effect, that he requested his discharge for family hardship and did not deserve a general discharge.  The applicant states since his discharge from the military he has been a productive citizen with no criminal record.  He has also received several awards for his participation in community organizations including but not limited to the Rotary and the Boys and Girls Club.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 10 December 1971; and a general discharge certificate, dated 10 December 1971.

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 enlisted in the Regular Army on 8 December 1970 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 91A (Medical Corpsman).

3.  On 18 November 1971, the applicant underwent a psychiatric evaluation by a military psychiatrist who diagnosed the applicant with "Passive-aggressive personality, chronic, severe, manifested by stubbornness, inefficiency, passive obstructionism, poor performance of military duty."  The military psychiatrist concluded that the diagnosis represented a character and behavior disorder within the guidelines of Army Regulation 635-212.  The psychiatrist further stated that the applicant's condition and the problems presented were not, in his opinion, amenable to hospitalization, treatment transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The psychiatrist recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212.

4.  On 24 November 1971, the applicant's company commander initiated a request for discharge for unsuitability under the provisions of Army Regulation 635-212 (Discharge Unfitness and Unsuitability).  

5. On 24 November 1971, the applicant consulted with the defense counsel at Landstuhl, Germany.  The applicant was advised of his rights and the effect of a waiver of those rights.

6.  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.





7.  On 30 November 1971, 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 passive-aggressive personality, chronic, severe, manifested by stubbornness, inefficiency, passive obstructionism, and poor performance of military duty. 

8.  On 7 December 1971, the appropriate authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212 for character and behavior disorder and directed issuance of a General Discharge Certificate.  On 10 December 1971, he was discharged with an unsuitability discharge after completing 1 year and 3 days of creditable active service with no time lost.  Item 13a (Character of Service) of the applicant's DD Form 214 shows the entry "UNDER HONORABLE CONDITIONS."

9.  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.

10.  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.



11.  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 10 December 1971 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 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.

BOARD VOTE:

___xx___  ___xx___  ____xx__  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:

      a.  showing he was separated from the service with an Honorable Discharge Certificate on 10 December 1971; 



		b.  issuing an Honorable Discharge Certificate, dated 10 December 1971, 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.




      _______ _ xxxx_____   ___
               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)                                         AR20080010718



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ABCMR Record of Proceedings (cont)                                         AR20080010718



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