IN THE CASE OF:	

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090014971 


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 discharge to an honorable discharge.

2.  The applicant states his medical records show he became disabled while in Korea and he was granted 50% service connected disability.

3.  The applicant provides, in support of his application, 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 military service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents to constitute a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted and entered active duty in the Regular Army for a period of 3 years on 1 October 1957.  Upon completion of training he was awarded military occupational specialty 764.10 (Quartermaster Supply Specialist).

4.  There is no evidence of conviction by court-martial.

5.  An administrative separation packet is not available.

6.  The applicant's DD Form 214 shows he was discharged from the U.S. Army under honorable conditions on 12 January 1960, under the provisions of Army Regulation 635-209 (Personnel Separations - Unsuitability) with Separation Program Number (SPN) 264, for unsuitability (character and behavior disorder) and issued a DD Form 257A (General Discharge Certificate).  He had:

	a.  2 years, 2 months, and 8 days of active service;

	b.  1 year and 26 days of foreign service; and

	c.  34 days of time lost.

7.  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.

8.  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.  

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was honorably discharged because he was disabled while serving in the U.S. Army.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Therefore, the Board concludes that 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.

3.  However, historically significant administrative decisions required an honorable discharge be issued in most cases of discharges for character and behavior disorders.  The available records do not show the applicant had any record of court-martial.  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 12 January 1960, under the provisions of Department of the Army Memorandum, dated 8 February 1978.

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
12 January 1960, 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)                                         AR20090014971



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ABCMR Record of Proceedings (cont)                                         AR20090014971



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