IN THE CASE OF:	  

		BOARD DATE:	         28 April 2009

		DOCKET NUMBER:  AR20090000085 


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 honorable.

2.  The applicant states that he was in a train accident as a child and the Army made him a train worker against his will with full knowledge of his childhood experience.  He contends that working around trains was a traumatic experience that he could not handle. 

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army on 10 February 1969 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 65J (trainman). 

3.  On 5 September 1969, in accordance with his pleas, the applicant was convicted by a summary court-martial of two specifications of being absent without leave (AWOL) from 25 July to 21 August 1969 and 22 August to 
23 August 1969.  He was sentenced to perform hard labor without confinement for 39 days.  On 8 September 1969, the convening authority approved the sentence.

4.  On 21 October 1969, nonjudicial punishment was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 27 January 1970, nonjudicial punishment was imposed against the applicant for two specifications of being AWOL (2 January to 5 January 1970 and 10 January to 12 January 1970) and for using disrespectful language.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 29 January 1970, the applicant underwent a psychiatric examination and was diagnosed with an immature personality disorder, moderate, chronic.  The examination states, in pertinent part, that the applicant was in an accident in which the car his parents were driving was hit by a train when he was 14 years old.  Both his parents were killed and he escaped with moderate injuries.  It also states that the applicant harbors considerable guilt about this accident because he had requested his parents pick him up from a reformatory school rather than take a bus home.  The psychiatrist found him to be mentally responsible and he was psychiatrically cleared for any action deemed appropriate by his command.

7.  On 17 February 1970, nonjudicial punishment was imposed against the applicant for being AWOL from 28 January to 29 January 1970 and breaking restriction.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

8.  On 24 March 1970, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The commander based his recommendation for separation on the applicant's immature personality disorder.  

9.  The applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

10.  On 27 March 1970, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
11.  Accordingly, the applicant was discharged on 6 April 1970 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorder.  He had served a total of 1 year and 12 days of creditable active service with 74 days of lost time due to being AWOL and in confinement.     

12.  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.

13.  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.  

14.  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.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  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 with a general under honorable conditions characterization of service.  His administrative separation on 6 April 1970 was accomplished in accordance with regulations then in effect.  

2.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge for unsuitability, character and behavior disorder (now known as personality disorder) which subsequently became effective.  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 6 April 1970. 

2.  That the Department issue to him an Honorable Discharge Certificate, dated 
6 April 1970, in lieu of the under honorable conditions (general 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)                                         AR20090000085



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ABCMR Record of Proceedings (cont)                                         AR20090000085



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