IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008624 


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 changed to an honorable discharge due to disability.

2.  The applicant states that a Navy doctor had diagnosed him as unfit for military duty due to acute anxiety.  He received a general discharge because he was absent without leave (AWOL), but he would not have gone AWOL if he had been discharged based on the Navy doctor's diagnosis.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), separation orders, and a letter of recognition from the South Dakota American Legion in support of his request.

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 are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular  Army and entered active duty on 6 February 1958.  He completed training and was awarded military occupational specialty 641.10 as an amphibious vehicle driver.

4.  He was AWOL from 11 through 18 May 1959 and 8 September through 7 October 1959.

5.  He was separated with a general discharge on 23 November 1959 under the provisions of Army Regulation 636-209 (Personnel Separations- Discharge - Unsuitability) due to a character and behavior disorder.

6.  A health record research project, commonly referred to as the "Surgeon General's Office (SGO) files," involved transposing the hospital admission card data from the periods of World War II and the Korean conflict onto magnetic tape. 
In 1988 the National Research Council made these tape files available to the NPRC.  The availability of the information to the NPRC received considerable publicity by the various veterans' service organizations.  It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.

7.  A search of the SGO files shows the applicant was hospitalized for 12 days in July 1959 at Portsmouth Naval Hospital, Portsmouth, Virginia, and discharged with a diagnosis of passive-aggressive reaction.  He was pending separation under the provisions of Army Regulation 635-209 for unsuitability.

8.  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 character and behavior disorders [now called personality disorders], disorders of intelligence, and transient personality disorders due to acute or special stress.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if such was available.  A general or an honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 (Personnel Separations- Discharge - Unfitness) was directed.

9.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-35, states:

   a.  A history of, or current manifestations of, personality disorders, disorders of impulse control not elsewhere classified…render an individual administratively unfit.

   b.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability. These conditions will be dealt with through administrative channels…

10.  Army Regulation 40-501, paragraph 3-36, states:

Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 superseded Army Regulation 635-209.  It 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that a Navy doctor diagnosed him as unfit for military duty due to acute anxiety.  He received a general discharge because he was AWOL, but he would not have gone AWOL if he had been discharged based on the Navy doctor's diagnosis.

2.  There is no available evidence that the applicant was ever diagnosed as medically or physically unfit.  He was separated for a character and behavior disorder.  Character and behavior disorders [currently termed personality disorders] and psychological reactions such as passive-aggressive or anxiety are not mental diseases and are not unfitting.

3.  There is no evidence that he received a general characterization of service solely because he went AWOL after being released from the hospital.

4.  However, the applicant's discharge should be recharacterized to honorable under the provisions of Department of the Army Memorandum, dated 8 February 1978.
  
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
23 November 1959, 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 changing his administrative discharge to a disability 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)                                         AR20090008624



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ABCMR Record of Proceedings (cont)                                         AR20090008624



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