BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008741 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he never received any type of punishment, Article 15s or reprimands.  He adds that although he was evaluated by the military and determined to have a character and behavior disorder he was never offered follow-up treatment.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 enlisted in the Regular Army and entered active duty on 27 March 1962. 

3.  On 15 February 1963, a board was convened to determine the applicant's mental condition for administrative purposes.  The board determined that the applicant had a character and behavior disorder.  The applicant was diagnosed as follows:  "aggressive reaction, chronic, moderate, manifested by irritability, poor personal relationships and inability to accept supervision; stress, minimal, routine military duty, predisposition, moderate; poor school and family history, impairment, moderate for military service, and moderate for social and industrial adaptation."  The board indicated the applicant was not suitable for retention in the Army on the basis of Army Regulation 635-209.

4.  On 25 February 1963, the company commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-209.  He cited the applicant's mental determination board as the basis for separation.

5.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he 
waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to counsel.  He also elected not to submit statements in his own behalf.

6.  On 27 February 1963, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-209 with the issuance of a General Discharge Certificate.

7.  The applicant's DD Form 214 shows he was discharged under honorable conditions, on 1 March 1963, under the procedures of Army Regulation 635-209, for character and behavior disorder.  The applicant had completed 11 months and 2 days of total active service.

8.  There is no indication that the applicant received punishment under the Uniform Code of Military Justice or was convicted by court-martial.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  



10.  Army Regulation 635-209 (Personnel Separations), in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability 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 inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It 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 administrative separation under the provisions of Army Regulation 635-209 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

2.  However, based on the applicant being diagnosed as having a character and behavior disorder, his application for discharge upgrade was reviewed under the criteria specified in the Brotzman Memorandum.  This 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.

3.  Additionally, the Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify an 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.  

4.  The applicant's military personnel record contains no Article 15s or convictions by court-martial.  His record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given. Therefore, it would be appropriate to upgrade his discharge to fully honorable 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 1 March 1963, 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.




      _______ _   __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)                                         AR20090008741



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ABCMR Record of Proceedings (cont)                                         AR20090008741



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