IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090009460 


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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states he was told that after 10 years he could request an upgrade of his discharge.  He further states that he received a GD due to his inability to complete his training because of medical conditions, which he still has.

3.  The applicant provides no supporting documentation.

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 15 March 1966.  He did not complete basic combat training.
3.  Statements provided by his chain of command during his separation processing show he complained of problems with his feet in the first week of training and he had passed out while in formation.  He was placed on light duty for a week and developed a pattern of going to sick call as soon as he was released from light duty.  Based on his medical treatment and repeated placement on light duty, he was unable to complete his training.

4.  The statements from members of his chain of command show only concerns or comments about the applicant's medical and psychiatric conditions and do not document any overt acts of misconduct or reference of possible disciplinary actions.

5.  The applicant received a neuropsychiatric examination on 24 June 1966 by a military psychiatrist and social worker.  They reported that the applicant came into the exam limping and using a cane.  The applicant claimed to be very nervous and he felt he would not be able to train even if his physical ills were corrected.  The examining officials diagnosed the applicant as passive aggressive personality with somatization [chronic and persistent complaints of physical symptoms that have no identifiable physical origin] and recommended the applicant's administrative separation from the service.  The officials further stated retention on active duty could be expected to result in continued ineffectiveness and disciplinary infractions.

6.  The applicant received a GD on 2 August 1966 with 4 months and 18 days of creditable service.  The reason and authority for separation are listed as Army Regulation 635-209 (Personnel Separations-Discharge-Unsuitability), paragraph 3b, SPN (Separation Program Number) 264 [unsuitability - character and behavior disorder/personality disorder].  

7.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statutory limit for review.

8.  Army Regulation 635-209, 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 character and behavior disorders.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  If separation was warranted a general or honorable discharge was considered appropriate.  [This regulation was subsequently incorporated into Army Regulation 635-200 (Personnel Separations - Enlisted Personnel.]

9.  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 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.

10.  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 he was told that after 10 years he could request an upgrade of his discharge.  His inability to complete training was due to medical conditions that he still has.

2.  At the time of the applicant's separation, it was within his command’s authority to determine if he should be separated with a GD or an HD.  The command exercised its authority and directed the applicant receive a GD.  There is no error in the characterization of his service as it was issued.

3.  However, the Nelson and Brotzman Memoranda required review of all discharges of former service members who had been separated due to a personality disorder (previously known as character and behavior disorders) under the revised considerations and standards.  Unless "clear and demonstrable reasons" why a fully honorable discharge should not be given were found, upgrade to a fully honorable discharge was required.

4.  The record contains no evidence that the applicant committed any infractions that resulted in either a general or special court-martial.
5.  Therefore, in accordance with the Nelson and Brotzman Memoranda, the applicant's discharge must be upgraded to fully honorable.

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 a DD Form 256A (Honorable Discharge Certificate), dated 2 August 1966, in lieu of the DD Form 257A (General Discharge Certificate) he now holds of the same date; 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)                                         AR20090009460



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ABCMR Record of Proceedings (cont)                                         AR20090009460



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