IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090010889 


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 an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states that he did not want to leave the Army.  An upgrade of his discharge would be the right thing to do.

3.  The applicant provides no additional documentation 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.  On 2 January 1959, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and the Army awarded him military occupational specialty 522.10 (Plumber).

3.  On 5 June 1959, the Army assigned the applicant to the 169th Engineer Battalion, located at Fort Stewart, Georgia, for duty as a plumber.

4.  The Army advanced the applicant to private first class, pay grade E-3, effective 2 September 1959.

5.  On 6 November 1959, the applicant departed Fort Stewart for duty in Europe.  He reported to A Company, 83rd Engineer Battalion on 30 November 1959.

6.  On 11 December 1959, the United States Army Hospital Croix Chapeau admitted the applicant for tremulousness, anxiety and slight depression.

7.  An AE Form 3087 (Certificate of Psychiatric Examination), dated 
15 December 1959, indicates a diagnosis of emotional instability reaction.  It described the applicant's condition as "severe anxiety, near panic, under the stress of military life.  He showed extreme dependency on his family, and he was unable to adjust to any setting away from his home.  He showed "No neurosis or psychosis."  He showed excitability and ineffectiveness when under stress, extreme dependency and immaturity.

8.  On 8 January 1960, the Chief, Medical Service reported the results of the applicant's neuropsychiatric examination and recommended the applicant's elimination from the service.  A complete neurological and psychiatric examination failed to reveal any evidence of neurosis or psychosis.  The diagnosis was emotional instability reaction.  The physician felt that due to the applicant's degree of immaturity it was doubtful he could tolerate a return to his unit, or that he could have been able to make a satisfactory adjustment to the Army in general.  The physician stated the applicant was able to distinguish right from wrong, and to adhere to the right.  He was mentally able to take part in hearings.  The applicant's case was discussed at the highest administrative level, within the hospital, resulting in a determination to eliminate the applicant as soon as possible.  The applicant had derived the maximum benefit from his hospitalization.  Expeditious elimination would free up a bed in the hospital.  The Commanding officer and the Chief, Neuropsychiatric Service wanted the applicant's elimination process expedited.



9.  On 15 January 1960, the applicant signed a statement indicating he had been counseled about his separation under the provisions of Army Regulation 
635-209.  He declined counsel and consideration of his case by a board of officers.  He did not desire to submit a statement in his own behalf.

10.  DA Form 37 (Report of Proceedings of Board of Officers) dated 5 February 1960, shows the applicant was found unsuitable for further military service due to character and behavior disorders.  The attached Report of Procedures of the Board of Officers stated that the board convened at 1300 hours on the above date.  The applicant was present with counsel.  The board president explained to the applicant his rights.  The reports of the psychiatric examination were read aloud.  Neither the board nor the applicant called any witnesses.  The case was submitted without further comment.  The board recommended discharge because of unsuitability and recommended the issuance of a DD Form 257A (General Discharge Certificate).  The board adjourned at 1340 hours.  On 
11 February 1960, the appropriate authority approved the recommendation.

11.  Accordingly, on 17 March 1960, the Army discharged the applicant with a separation program number of 264 (character and behavior disorder).  He had completed 1 year, 2 months and 16 days of creditable active service.

12.  A review of the applicant's records show his conduct and efficiency ratings from 10 January to 29 November 1959 were “excellent.”  The period from 
15 February to 10 March 1960 are shown as "unknown."  The applicant's records do not contain any documentation of disciplinary problems or misconduct.

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

14.  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 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 are 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.

15.  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.  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 contends that upgrading his discharge to honorable is the right thing to do.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant was separated due to a personality disorder with a general discharge in accordance with the regulation in effect at the time.  However, it now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memorandums.

5.  Therefore, it would be appropriate to grant the applicant's request for an upgrade of his discharge.



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 the applicant was separated from the service with an Honorable Discharge Certificate on 17 March 1960;

      b.  issuing the individual an Honorable Discharge Certificate, dated 
17 March 1960, in lieu of the general discharge of the same date now held by him; and

      c.  issuing him a new DD Form 214, effective 17 March 1960, showing his characterization of service as honorable.




      _______ _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)                                         AR20090010889



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ABCMR Record of Proceedings (cont)                                         AR20090010889



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