IN THE CASE OF:	  

		BOARD DATE:	       10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007358 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he is requesting that his discharge be changed to honorable and that he be issued a new DD Form 214 and a DD Form 256A (Honorable Discharge Certificate).  He further states that these items will not be used to pursue any benefits.  

3.  The applicant provides the following documents in support of his application:  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Headquarters, First United States Army, Fort George G. Meade, MD, Orders 34-33, dated 24 February 1977, honorably discharging him from the U.S. Army Reserve (USAR) Ready, effective the same date; Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, Orders 12-1132020, dated 20 December 1978, honorably discharging him from the Ready Reserve, effective 14 October 1978; and Headquarters, Massachusetts State Guard, Camp Curtis Guild, Reading, MA, Orders 1-1, dated 11 April 1985, showing he enlisted in the Massachusetts State Guard in the grade of E-5.

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 record shows he was inducted into the Army of the United States (AUS) on 19 November 1963.  He was trained in, awarded, and served in military occupational specialty (MOS) 051.10 (Radio Operator).  The highest rank/grade he attained and held while serving on active duty was private (PV2)/E-2.

3.  The applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding the applicant's drug testing or discharge processing.  However, it does contain an OSA Form 172 (Army Discharge Review Board (ADRB) Case Report and Directive), with attached Docket Number 75113, dated 3 September 1965, which contains information regarding the facts and circumstances surrounding the applicant's separation processing.  

4.  The ADRB case report confirms that the applicant's unit commander referred him for a mental health evaluation.  On 6 March 1964, the examining psychiatrist diagnosed the applicant with Schizoid Personality; Immaturity Reaction.  He stated that the applicant lacked the ability to adjust to the military and felt that he would continue to have problems in the Army.  He also stated that the applicant's personality disorder is such that he could not be expected to respond to counseling, transfer, or confinement, that retention on active duty would result in continued ineffectiveness and disciplinary infractions, and that continued stress of military life could even result in him becoming seriously mentally ill.  He further recommended that the applicant be administratively discharged based on his Schizoid Personality.

5.  The ADRB case report also confirms that on 3 August 1964, the unit commander initiated action to discharge the applicant from active duty under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge -Unsuitability), by reason of unsuitability (apathy, defective attitude, and inability to expend effort constructively).  It also confirms the applicant had no courts-martial or received any nonjudicial punishment (Article 15) under the Uniform Code of Military Justice (UCMJ) during his tenure on active duty. 

6.  On 14 April 1964, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209, by reason of unsuitability and directed he receive a GD.

7.  On 21 April 1964, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his separation shows he was separated under the provisions of Army Regulation 635-209, SPN (Special Program Number) "26," for unsuitability, and that he received a GD.  This document also shows he completed a total of 5 months and 2 days of creditable active military service and that he accrued 1 day of time lost.

8.  On 7 September 1965, the ADRB after careful review of the applicant's military records and all other available evidence determined the applicant's reason for discharge and the characterization of service were both proper and equitable and voted to deny relief.  The applicant was subsequently notified of the ADRB's decision on 14 October 1965.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), Appendix A of the version in effect at the time, shows that SPN 264 corresponds to character and behavior disorder.  Appendix A does not list an SPN of "26."

10.  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.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  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. 

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his GD be upgraded to an HD was carefully considered and found to have merit.  The evidence of record confirms that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.  However, the Brotzman Memorandum requires that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders (at the time, character and behavior disorders).  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

2.  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 confirms the applicant was never court-martialed and never received any NJP during his tenure on active duty.  

3.  A separation for unsuitability (character and behavior disorder) with SPN 264 must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  The ADRB case report confirms the applicant was evaluated by a psychiatrist and diagnosed with Schizoid Personality; Immaturity Reaction.  A report of neuropsychiatric examination shows a diagnosis: 3200 - Schizoid Personality, mild.  Therefore, in accordance with the Brotzman/Nelson 

Memoranda it appears it would be appropriate to upgrade the applicant's GD to an HD based on his personality disorder and the absence of substantial instances of indiscipline.

BOARD VOTE:

____X____  ___X_____  ____X____  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.  issuing the applicant an Honorable Discharge Certificate, dated 21 April 1964, 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 and his SPN as "264" instead of "26" that is currently shown on his DD Form 214.



      _________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)                                         AR20090007358



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ABCMR Record of Proceedings (cont)                                         AR20090007358



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