IN THE CASE OF:	    

		BOARD DATE:	         26 March 2009

		DOCKET NUMBER:  AR20080017626 


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 undesirable discharge be upgraded to honorable or a general discharge.

2.  The applicant states, in effect, that he was schizophrenic and that he was taking medication while in confinement.  However, after he was released they did not tell him to continue his medication and when he stopped taking it he became worse.  He also states that he did not know he had a mental condition and that the military did not help him treat it before he got out. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 was inducted into the Army of the United States on 23 May 1967.  He successfully completed basic combat training and advanced individual training in military occupational specialty 94A (cook).

3.  On 5 December 1967, nonjudicial punishment was imposed against the applicant for being absent from his unit on 4 December 1967.  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, restriction, and extra duty.  

4.  On 29 March 1968, in accordance with his pleas, the applicant was convicted by a special court-martial of assault and two specifications of being absent without leave (AWOL) from 8 through 11 January 1968 and from 22 January through 12 February 1968.  He was sentenced to be confined at hard labor for six months and to forfeit $68.00 per month for six months.  On 30 March 1968, the convening authority approved the sentence.  On 12 April 1968, the unexecuted portion of the sentence to confinement at hard labor was suspended for 6 months.  

5.  On 9 April 1968, the applicant underwent a separation physical examination and was found qualified for separation.  The examining physician noted the applicant had been diagnosed with a sociopathic personality at the community mental health service on 3 April 1968.  

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, discharge orders show he was discharged on 30 April 1968 with an undesirable discharge under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder.  He had completed 11 months and 29 days of creditable active service with 40 days of time lost due to being AWOL and in confinement.  

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

8.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and 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 and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general or honorable discharge was considered appropriate.  

9.  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 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.

10.  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.  

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the administrative separation on 30 April 1968 was accomplished in accordance with regulations then in effect.  

2.  However, during processing for discharge, the applicant was diagnosed with a character and behavior disorder by a psychiatrist, and he was discharged for unsuitability due to a character and behavior disorder.

3.  In view of the foregoing, the undesirable discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge for unsuitability which became effective in June 1976.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards. 

BOARD VOTE:

___X____  __X____  ___X ____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 30 April 1968. 

2.  That the Department issue to him an Honorable Discharge Certificate, dated 
30 April 1968, in lieu of the undesirable discharge of the same date now held by him.




      _______ _   _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)                                         AR20080017626



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ABCMR Record of Proceedings (cont)                                         AR20080017626



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