IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008697 


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 correction of his records to show he was medically discharged.

2.  The applicant states, in effect, he was discharged based on unsuitability; however, he was medically unfit at the time and he should have been medically discharged due to mental illness.

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 entered active duty in the Regular Army for a period of 3 years on 28 June 1963.  Upon completion of training, he was awarded military occupational specialty 433.10 (NIKE Mechanic Repairman).

3.  On 3 June 1964, the applicant was tried by a special court-martial.  He pled guilty to all charges and specifications and was found guilty of being absent without leave (AWOL) from 19 December 1963 to 19 January 1964 and for being AWOL from 22 February 1964 to 13 May 1964.  The applicant's sentence was to be confined at hard labor for six months and to forfeit $28.00 per month for six months.  (No previous convictions considered.)  On 5 June 1964, the convening authority approved the sentence and directed the applicant be confined in the Post Stockade, Fort McPherson, Georgia, and the confinement served therein or elsewhere as competent authority may direct.

4.  On 12 August 1964, the applicant's commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-209 (Personnel Separations - Unsuitability) prior to the expiration of his normal term of service.

   a.  The commander's recommendation of the applicant's separation was based on one special court-martial for violation of Article 86, Uniform Code of Military Justice; approximately 213 days lost due to AWOL and confinement; and the recommendations in a psychiatric report.

   b.  A psychiatric report from the Chief, Psychiatric Section, U.S. Army Hospital, Fort McPherson, Georgia, shows the applicant was diagnosed with an emotionally unstable personality.  The psychiatrist stated that there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  He found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  The psychiatrist stated that it would be beneficial to the applicant and the military service for the applicant to be considered for an administrative separation as expeditiously as possible.

5.  On 12 August 1964, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  The applicant indicated that he did not desire to submit a statement in his own behalf.  The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  The applicant and his legal counsel each affixed their signature to the document.

6.  On 18 August 1964, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-209 for unsuitability and directed the applicant be issued a General Discharge Certificate.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from the U.S. Army under honorable conditions on 2 September 1964, under the provisions of Army Regulation 635-209 with Separation Program Number (SPN) 264, for unsuitability (character and behavior disorder) and issued a DD Form 257A (General Discharge Certificate).  At the time he had completed 1 year, 3 months, and 2 days of net service and total active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, and apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which superseded Army Regulation 635-209, 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.  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.

11.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was medically discharged because he was medically unfit at the time and he should have been medically discharged due to mental illness.

2.  Records show the applicant was examined by the Chief, Psychiatric Section, U.S. Army Hospital, Fort McPherson, Georgia, to ensure he was mentally fit for discharge and the diagnosis was that the applicant had an emotionally unstable personality.  The psychiatrist also found that there were no disqualifying mental defects sufficient to warrant disposition of the applicant through medical channels.  The psychiatrist concluded it would be beneficial to the applicant and the military service for the applicant to be considered for an administrative separation as expeditiously as possible.

3.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

4.  There is no evidence of record, and the applicant provides insufficient evidence, that shows the applicant was found mentally (or physically) unfit for retention in military service during the period of service under review.  Thus, the evidence of record does not support the applicant's contention that he should have been medically discharged due to mental illness.
5.  However, the evidence of record shows that historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing and as a matter of justice, the applicant's military service records should be corrected to show he was honorably discharged, effective 2 September 1964, 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
2 September 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 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 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)                                         AR20090008697



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ABCMR Record of Proceedings (cont)                                         AR20090008697



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