IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100008341 


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 his general discharge be upgraded to an honorable discharge. 

2.  He states he was wrongfully discharged based on allegations of misconduct and that at the time of his discharge he was under medical treatment.  He also states the attached documents are relevant to his application.

3.  He provides copies of the following:

* Correspondence, subject "Whereabouts," dated 5 August 1959
* Two Mental Hygiene Consultation Service Certificates
* A DA Form 2173 (Statement of Medical Examination and Duty Status)
* The front page of Special Court-Martial Order Number 35
* The front page of a Request for Discharge Under the Provisions of Army Regulation 635-209 
* A Line of Duty statement

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 3 February 1956, the applicant enlisted in the Regular Army (RA) for 
3 years.  He completed the training requirements and he was awarded military occupational specialty 776 (Transportation Parts Specialist).  On 6 February 1959, he was honorably released from active duty at the expiration of his term of service and transferred to the U.S. Army Reserve.

3.  On 10 February 1959, he enlisted in the RA in pay grade E-2 for 6 years.  He was promoted to pay grade E-4 on this same date.

4.  The applicant provided correspondence, dated 5 August 1959, wherein the Adjutant General, wrote the Commander, Fort Monmouth, New Jersey inquiring if the applicant was there.

5.  A DA Form 2173, dated 3 September 1959, shows he sustained a deep laceration to his left wrist on 29 August 1959.  

6.  A Mental Hygiene Consultation Service (MHCS) Certificate, dated 3 September 1959, shows the applicant was seen at the Patterson Army Hospital due to attempted suicide.  The applicant was determined not to be insane and he possessed sufficient mental capacity to know the difference between right and wrong.  He was also considered to be mentally responsible for his actions.  HE had many personal problems which were difficult for him to cope with and he felt overwhelmed by them.  He acted impulsively without good judgment and later sincerely, regretted his behavior.  The examining physician, the Chief, MHCS, an Army medical doctor, stated he did not believe the applicant seriously wanted to kill himself, but that he was pleading for help.  The examining physician believed counseling would help the applicant better control his impulsive behavior.  The applicant’s background and military record suggested he had satisfactory control in the past.

7.  On 9 September 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 26 to 28 August 1959 and stealing a pistol, the property of the U.S. Government, on 25 August 1959.  His sentence was approved on 10 September 1959.

8.  On 29 October 1959, the Assistant Chief, Psychiatry and Neurology Consultant reviewed the applicant’s case and found him to be mentally sound at the time of his self-inflicted injury on 29 August 1959.

9.  On 13 November 1959, his 29 August 1959 injury was determined not to be in the line of duty.

10.  A Mental Hygiene Consultation Service (MHCS) Certificate, dated 23 November 1959, shows the applicant was diagnosed with an emotional unstable reaction, severe, manifested by poor impulse control, impulsive behavior, and poor judgment which resulted in behavior which was harmful to himself and a disciplinary problem.  The predisposition was his previous history of difficulty in getting along with other people and preferring to be alone.  Line of duty:  No, existed prior to service (EPTS).  The examining physician, the Chief, MHCS, recommended, if the applicant continued to create further problems for himself and others, he should be separated from the military as soon as possible under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Inaptitude or Unsuitability).

11.  A Unit Commanders Evaluation, dated 21 July 1960, shows the applicant's commander stated the applicant had a definite “don’t care” attitude towards the military.  The applicant tried to do just enough to get by.  He seemed to want the security the Army offered such as quarters, rations, and pay, but he used as little effort as possible to earn those privileges.  The applicant was transferred to his current unit after having problems with his previous unit.  The applicant's commander also stated the applicant rebelled against the rules and regulations and his attitude was that regulations were made just to harass him personally.

12.  On 21 July 1960, the applicant was notified of the commander's intent to process him for elimination under the provisions of Army Regulation 635-209.  On the same date, he acknowledged the notification and elected not to have his case heard by a board of officers.  He also elected not to submit a statement in his own behalf.

13.  On 22 July 1960, the applicant's commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-209, for character and behavior disorders.  The commander stated the applicant had been counseled by the unit commander on several occasions.  No reassignments were made within the unit as the applicant’s problem was a personal family problem rather than a military problem.

14.  On 4 August 1960, the appropriate separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  

15.  He was discharged in pay grade E-2 on 10 August 1960, under the provisions of Army Regulation 635-209 with a general discharge.  His DD Form 214 shows he was credited with 1 year, 2 months, and 3 days total active service and 120 days of lost time.  He was assigned a separation program number (SPN) of 264 (unsuitability, character and behavioral disorders).  

16.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-209, then in effect, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations) currently provides the policies and procedures for the separation of enlisted personnel.  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.

19.  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 application 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 evidence shows the applicant reenlisted in the Regular Army on 10 February 1959, with prior active service.  On 23 September 1959, he underwent a psychiatric examination as a result of an attempted suicide.  The examining physician, the Chief, MHCS, stated he did not believe the applicant seriously wanted to kill himself, he was pleading for help.  The examining physician believed counseling would assist him with controlling his impulsive behavior.  The examining physician stated the applicant’s background and military record suggested he had satisfactory control in the past.

2.  He was subsequently diagnosed with an emotionally unstable reaction manifested by poor impulse control.  His diagnosed condition was determined not to be in the line of duty and EPTS.  It was recommended he be separated under the provisions of Army Regulation 635-209.  He was discharged in pay grade E-2 on 10 August 1960 with a general discharge and assigned an SPN of 264 for unsuitability, because of character and behavior disorders. 

3.  His contentions have been noted; however, it is apparent his general discharge was based on his overall performance during the period 10 February 1959 through 10 August 1960.  During this period he was convicted by a special court-martial of being AWOL and stealing a pistol.  He accrued 120 days of lost time.  His unit commander stated the applicant had a definite “don’t care” attitude towards the military.  He had been given a rehabilitation transfer due having problems in his previous unit; however, he continued to work against the rules and regulations.  

4.  He was subsequently diagnosed with an emotional unstable reaction condition.  The Chief, MHCS, stated the applicant had many personal problems which were difficult for him to cope with.  When he felt overwhelmed by them he had acted impulsively without good judgment and later regretted his behavior.  The Chief, believed counseling would be helpful to better control his impulsive behavior and he had satisfactory control in the past as evident by his prior honorable period of service (3 February 1956 to 6 February 1959).  

5.  A review of his medical diagnosis and conduct during his last period of service does not indicate a strict application of the provisions of the above-referenced Army memoranda and as such an upgrade in his character of service is not warranted.
6.  The applicant has provided insufficient evidence to show his discharge was unjust or that he deserves an honorable discharge now.  He also has not provided evidence sufficient to mitigate the character of his service.  In the absence of evidence to the contrary, his discharge is commensurate with his overall record of military service. 

7.  It appears his administrative separation was accomplished in compliance with applicable regulation, with no procedural errors which would have jeopardized his rights.  In view of the foregoing, there is no basis for granting his request for an upgrade of his general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20100008341



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)