IN THE CASE OF:	  

		BOARD DATE:	        30 December 2009

		DOCKET NUMBER:  AR20080017499 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that prior to his induction he had been seeing a doctor for abdominal pains and the doctor was treating him for nervous stomach. He goes on to state that after being inducted the abdominal problems worsened and no one could find the reasons for the painful attacks, to include Army psychologists.  He continues by stating that after his discharge the attacks continued to worsen and became more frequent and finally his doctor checked his gallbladder and discovered that it was packed with stones and at the point of bursting.  He further states that he had surgery to remove 56 stones and since that time he has no health problems. 

3.  The applicant provides a one-page explanation of his application, a copy of his DD Form 214 and a copy of his General Discharge Certificate.

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 was born on 3 October 1946 and was inducted in Detroit, Michigan on 18 February 1966 as a category IV inductee.  He was transferred to Fort Campbell, Kentucky to undergo his training.  He completed his basic training and remained at Fort Campbell to undergo his advanced individual training as a cannoneer.

3.  On 6 July 1966, nonjudicial punishment was imposed against him for being absent from his place of duty on 5 July 1966.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

4.  The applicant's commander submitted a request to have the applicant physically and psychiatrically examined.  He indicated that the applicant had been continually treated by physicians since his induction and that treatment and diagnosis by all doctors had been fruitless and the applicant was still subject to severe headaches and stomach cramps.

5.  On 4 August 1966, a mental status evaluation was conducted in which the examining psychiatrist indicated that the evaluation was a repeat evaluation of the applicant's mental status.  He also diagnosed the applicant as having a passive-aggressive personality, chronic, mild, manifested by refusal to put forth effort, inefficiency, numerous repeated somatic complaints associated with anxiety and lack of insight into his situation.  He further indicated that there was a relatively long history of similar somatic complaints for which no actual reason could be found prior to entry into military service.  He recommended separation by the most expeditious means under the provisions of Army regulation 635-209.

6.  On the same day, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-209 for unsuitability based on a diagnosed character and behavior disorder.  He cited as the basis for his recommendation that the applicant was subject to severe migraine headaches and stomach cramps whenever detailed to do tiring or strenuous work.  He becomes extremely nervous when exposed to loud noises, such as the firing of a howitzer or the bark of a dog.  Extensive counseling and medical treatment have had no effect and his condition prevented him from completing his training as a cannoneer.

7.  The applicant waived all of his rights and elected not to submit a statement in his own behalf.
8.  The appropriate authority approved the recommendation for discharge on 15 August 1966 and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 15 August 1966, under the provisions of Army Regulation 635-209, for unsuitability due to a character and behavior disorder.  He had served 5 months and 27 days of total active service and was still in a trainee status.

10.  There is no evidence to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's     15-year statute of limitations.

11.  Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  An honorable or general discharge was authorized.  That regulation was subsequently incorporated into Army Regulation 635-200 as Chapter 13.

12.  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 a 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 upgrades 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 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 evidence of records shows that the applicant’s administrative separation on 28 March 1963 was accomplished in accordance with regulations then in effect.
2.  However, the general discharge appears to be unduly harsh considering that the applicant may have had a long-standing basic character and behavior disorder which in all likelihood existed prior to entering the Army and may tend to exist permanently.

3.  Although the applicant has provided no evidence to support his contention that he had a bad gallbladder at the time, if such was the case, that too would explain his difficulties at the time and it would be inappropriate to base his characterization on an undiagnosed medical condition.  In any event, he was discharged based on a character and behavior disorder that was diagnosed by a psychiatrist at the time and he had no incidents of repeated misconduct.

4.  Consequently, it appears that the above-mentioned memorandums should be applied to this case and that his discharge should be upgraded to honorable.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the individual concerned was separated from the service with an Honorable Discharge Certificate on 15 August 1966.






2.  That the Department issued to him an Honorable Discharge Certificate from the Army of the United States, dated 15 August 1966, in lieu of the general discharge of the same date held by him.



      _______ _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)                                         AR20080017499





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017499



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1