IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090007395 


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 discharge be changed to honorable or medical.

2.  The applicant states he should have received either an honorable or medical discharge due to the conditions he had.  His medical records show was emotionally unstable.

3.  The applicant provides a copy of a 30 October 1968 545th Ordnance Company document.

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 4 January 1968, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was afforded a psychiatric evaluation on or about 25 September 1969.  A copy of the report is not of record.

4.  A 30 September 1968 medical officer's statement reports the applicant met the retention medical standards, was mentally responsible, and able understand and participate in board proceedings.  It indicates the psychiatric evaluation was attached; however, what appears to be attached is a statement from the applicant's unit commander.

5.  The unit commander's statement reports that the applicant had not had any nonjudicial punishments and that the 25 September 1969 psychiatric evaluation found the applicant to have emotional instability with very poor prospects for rehabilitation.

6.  On 30 October 1968, the 545th Ordnance Company unit commander recommended the applicant be separated from the service under Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for a severe character and behavior disorder.  The applicant's conduct and efficiency for the period January 1968 through July 1968 was reported as excellent and for the period July 1968 through the October 1969 as unsatisfactory.

7.  The applicant acknowledged the proposed separation action and waived his rights to counsel and to have his case reviewed by a board of officers.

8.  On 18 November 1968, the discharge authority approved the separation for unsuitability and directed the applicant be separated with a general discharge.

9.  The applicant was discharged on 9 January 1969.  He had 1 year and 6 days of creditable service with no time lost.

10.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards for retention and separation, including retirement.  Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service.  Personality disorders may render individuals administratively unfit rather than unfit due to physical disability.  Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels.

11.  Army Regulation 635-212 was incorporated into Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) which 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, 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, 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 states he should have received either an honorable or medical discharge due to the conditions he had.  His medical records show he was emotionally unstable.

2.  Personality disorders render individuals administratively unfit rather than unfit due to physical disability; therefore, granting the applicant a medical discharge is not appropriate.

3.  The Nelson/Brotzman memoranda mandate the retroactive application of revised policies for Soldiers who were separated based on personality disorder.  Unless there are clear and demonstrable reasons which would justify a less than fully honorable discharge, an honorable discharge is required.

4.  The applicant did not receive any court-martial convictions; therefore, in accordance with the Nelson/Brotzman memoranda, the applicant's character of service must be upgraded to honorable.

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 9 January 1969, 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 corrections.

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 award of a medical discharge.



      ___________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)                                         AR20090007395



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ABCMR Record of Proceedings (cont)                                         AR20090007395



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