IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090010666 


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 6 December 1961 discharge be upgraded.

2.  The applicant states he had prior honorable discharges and believes his 6 December 1961 discharge should also be honorable.  He reenlisted and was sent to Germany with the assumption that his wife and children would be joining him.  His wife notified him shortly thereafter that she had found someone else and left him with the children.  He "went off the deep end" and attempted suicide, was hospitalized, and then discharged.  He was told that after 6 months his discharge would be automatically upgraded to fully honorable.

3.  The applicant provides copies of his 12 December 1960 and 6 December 1961 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board afford the applicant an upgrade of his discharge.

2.  Counsel states they support the applicant's request and believe his statements amply advance his contentions for upgrading his discharge to honorable.

3.  Counsel provides no additional 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 Adjutant General's Office Form 109 (Request for Statement of Service), dated 14 August 1961, indicates the applicant served in an inactive status from 30 December 1952 to 2 February 1954, but it is not clear in what branch and component of the military forces.  He entered active duty in the Regular Air Force on 3 February 1954 and was discharged on 16 April 1954 for a disability that existed prior to service.  No prior service is recorded on the DD Form 214 for this period of service.

3.  The applicant enlisted in the Regular Army on 13 December 1957 and was honorably discharged on 12 December 1960.  The DD Form 214 issued at this time shows a total of 5 years, 8 months, and 13 days of service with 4 years, 5 months, and 13 days being active duty service.

4.  The applicant again enlisted in the Regular Army on 8 February 1961 and was assigned duty in Germany.

5.  In September 1961 he was hospitalized for treatment of a back problem.  During this period of hospitalization it is reported he performed certain self-destructive acts and was transferred to the psychiatric service for observation.

6.  The applicant was diagnosed as suffering from severe chronic emotional instability reaction with depression, anxiety, insomnia, and an inability to concentrate.  It was recommended he be discharged for unsuitability, due to a personality disorder.

7.  His command initiated separation action on 4 October 1961 under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) for unsuitability due to a personality disorder.  The unit commander reported that the applicant was unable to perform normal duties due to his poor emotional and mental state.  There was no record of any courts-martial or nonjudicial punishment and his chain of command indicated he had not been a disciplinary problem, but because of his nervous condition he had not been issued any weapons or given responsibilities that a man in his grade would be expected to perform.

8.  The applicant acknowledged the proposed action and waived his right to counsel, to have a hearing before board of officers, and to submit a statement on his own behalf.

9.  The discharge authority approved the separation and directed the applicant receive a general discharge certificate.

10.  The applicant was discharged on 6 December 1961 under honorable conditions for a character and behavior disorder.

11.  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 when, in the commander's opinion, it was clearly established that due to an individual's psychiatric condition (including character and behavior disorders), it was unlikely the individual would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  The regulation 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 a 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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  There is not now nor has there ever been any provision for an automatic upgrade of a general discharge after 6 months.

2.  While the applicant was not a disciplinary problem, his personality disorder prevented him from meeting the standards of acceptable conduct and performance of duty as to warrant a fully honorable discharge as established at the time of his discharge.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  However, due to regulatory changes based on the implementation of the Nelson/Brotzman memoranda in 1976, an upgrade of a discharge to fully honorable is required if the reason for the separation was for a personality disorder and there were no "clear and demonstrable reasons" why a fully honorable discharge should not be given.

5.  Therefore, as a matter of equity it is appropriate to upgrade the applicant's discharge to fully honorable at this time.

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.  showing that he was separated from the service with an Honorable Discharge Certificate on 6 December 1961;

	b.  issuing to him an Honorable Discharge Certificate, dated 6 December 1961, in lieu of the general discharge of the same date now held by him; and 

	c.  issuing to him a new DD Form 214 reflecting the above correction.



      _______ _  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)                                         AR20090010666



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ABCMR Record of Proceedings (cont)                                         AR20090010666



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