IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005185 


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 his general discharge for the period ending 28 September 1962 be upgraded to an honorable discharge and correction of his records to show he was awarded the Army Good Conduct Medal (AGCM).

2.  The applicant states he was discriminated against and forced out of the service with incorrect information.  He states that he was discharged by reason of Schisoid [Schizoid] Personality and that he has never had a mental health condition.

3.  The applicant provides a letter addressed to the Veteran's Administration, appeal documentation, a copy of a newspaper article, a copy of his Colorado operator's license issued in 1962, a list of twelve character references with statements from those listed references, a copy of DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 27 October 1960 and 28 September 1962, three memoranda endorsements relative to his discharge, and a DA Form 137 (Installation Clearance Record) 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.  The applicant's military records show he enlisted in the Regular Army on 22 September 1958.  He was awarded the military occupational specialty of cook.  He was honorably discharged on 27 October 1960 for the purpose of immediate reenlistment on 28 October 1960 for six years.  The highest grade he held was pay grade E-5.

3.  On 3 August 1962, the applicant's commander recommended he be considered for elimination from the military service under the provisions of Army Regulation 635-209 (Unsuitability) for reason of inefficiency.  Statements by his leadership, dated 3 August 1962, indicated the applicant lacked the knowledge, initiative, and desire to do a good job with his subordinates.  The commander stated in his request that the applicant had been counseled on several occasions in regards to his personal appearance, hygiene, and poor attention to duty.  He stated that the applicant had been given every available opportunity to improve and adjust to military life by choice of job assignment, advice, and self management.  He stated that the applicant displayed a very negative attitude towards the Army, military life, and self respect.  After thorough counseling and instructions, the applicant showed no improvement or desire for forward advancement of his present state.  The document indicates the applicant had accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) on 11 May 1962 for having a dirty weapon.  The commander’s recommendation indicated that the applicant’s discharge packet included a certificate of evaluation by a psychiatrist.  This report of Neuropsychiatric examination shows "diagnosis: 3200 - Schizoid personality, mild." 

4.  On 23 August 1962, the applicant acknowledged he had been counseled and advised of the basis for the action recommended against him, and furnished a copy of the Commanding Officer's report, and furnished copies of the statements submitted to support the recommendation for elimination and the names of 


prospective witness to appear or to submit a statement that would be used against him.  He acknowledged he was afforded the opportunity of requesting counsel and declined the opportunity.  He waived the opportunity to have a hearing by a board of officers.  He did not elect to submit a statement on his own behalf.   

5.  On 4 September 1962, the applicant acknowledged that he had been counseled and notified by his commander that he was being recommended for discharge under the provisions of Army Regulation 635-209 for unsuitability.  He acknowledged that he was fully aware of the fact that he may be issued a General Discharge Certificate.  He acknowledged that military counsel had been made available to him.  He did not elect to submit a statement on his own behalf. 

6.  On 10 September 1962, the separation authority approved the recommendation for separation under the provisions of paragraph 5 of Army Regulation 635-209, Unsuitability, and directed that the applicant be issued a General Discharge Certificate.

7.  On 28 September 1962, the applicant was discharged under the provisions of Army Regulation 635-209, unsuitability, character and behavior disorder, with a general discharge and a Separation Program Number (SPN) of 264.  The DD Form 214 issued to him shows he completed a total of 4 years and 7 days of active duty service with one day of lost time.

8.  Army Regulation 635-5 (Personnel Separations-Separation Documents), Appendix A in effect at the time, shows SPN 264 corresponds to character and behavior disorder.

9.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d), enuresis, (e) chronic alcoholism; and (f) Class III homosexuality (evidenced homosexual 


tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.

10.  Army Regulation 635-209 was superseded by Army Regulation 635-200.  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 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. 

11.  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 a 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.

12.  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.

13.  The applicant's records are void of any orders or other documents that indicate he was ever recommended for or awarded the AGCM by proper authority while serving on active duty.  The applicant's DA Form 24 (Service Record) shows periods of service with "fair, good, and unsatisfactory" conduct and efficiency ratings.  His records indicate he accepted NJP on two occasions:  for disorderly conduct and for having a dirty weapon.  His records also show he was absent without leave for one day.

14.  The AGCM was established by Executive Order 8809, 28 June 1941 and was amended by Executive Order 9323, 1943 and by Executive Order 10444, 10 April 1953.  It is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service.  It is awarded on a selective basis to each Soldier 


who distinguishes himself or herself from among his or her fellow Soldiers by their exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service, as outlined in this chapter.  There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders. 

15.  Army Regulation 672-5-1 (Military Awards), in effect at the time, required that throughout a qualifying period of service for award of the AGCM the enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record nor has the applicant provided evidence to substantiate his contention that he was discriminated against or that he was "forced out" at the time of his discharge.  When he was notified that he was being recommended for discharge, he acknowledged that he had been advised as to the type of discharge he may receive as a result of being discharged under the provisions of Army Regulation 635-209.  He was afforded the opportunity to consult with counsel and to submit statements in his own behalf, but he declined to do so.  It does not appear that his general discharge was unjust as his service in the Army was not fully honorable.

2.  The applicant's discharge record indicates he was counseled on several occasions in regards to his personal appearance, hygiene, and poor attention to duty.  Evidence indicates the applicant accepted NJP on two occasions and that he was absent without leave for one day.

3.  While all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process, the Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

4.  The Nelson Memorandum 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.  The applicant's military personnel record 


indicates two instances of NJP.  However, his record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given. 

5.  A separation for unsuitability with SPN 264 (character and behavior disorder), must include a diagnosis of a personality disorder made by a physician trained in 
psychiatry.  The commander’s recommendation indicated that the applicant’s 
separation documents included a certificate of evaluation by a psychiatrist.  A report of Neuropsychiatric examination shows a diagnosis: 3200 - Schizoid personality, mild.  Therefore, in accordance with the Brotzman/Nelson Memoranda, it would be appropriate to upgrade the applicant's general, under honorable conditions discharge to an honorable discharge based on his personality disorder and the absence of substantial instances of indiscipline.

6.  The applicant did not receive all "excellent" conduct and efficiency ratings throughout this qualifying period of service; therefore, he is not entitled to award of the AGCM.

7.  In view of the foregoing, the applicant's records should be corrected only to the extent as shown below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ___X____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing the applicant an Honorable Discharge Certificate, dated 28 September 1962, in lieu of the General Discharge Certificate of the same date now held by the applicant; and

	b.  issuing the applicant a new DD Form 214 reflecting the above correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding the AGCM.




      _______ _   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)                                         AR20090005185





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ABCMR Record of Proceedings (cont)                                         AR20090005185



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