BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100012168 


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 her discharge be upgraded to honorable and her separation program number (SPN) should be changed.

2.  The applicant states, in effect, her discharge is unjust because she was raped by a master sergeant and demoted because she reported the incident.  She was also attacked by her roommate and escaped by going to the military police station.  The next day she was arrested and processed out of the Army.  She states she was an outstanding member of the Women's Army Corps (WAC).  She served in the first WAC unit in Hawaii and she was the first WAC selected to go to the IBM training school.  She believes her SPN is unjust and insulting.

3.  The applicant provides a copy of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to substantiate her request.

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 enlisted in the WAC on 8 July 1958.  She completed training, and was awarded a letter of appreciation by the commanding officer of the Transient Female Detachment and then assigned to Oakland, California.

3.  A clinical Record Cover Sheet, dated 29 February 1959, shows the applicant was diagnosed at the Neuropsychiatric Clinic, Letterman Army Hospital, San Francisco and to suffer from chronic, severe emotional instability reaction and the recommendation was that she be separated under the provisions of Army Regulation 635-209.

4.  The applicant was advanced to private first class on 18 March 1959 and reduced to private (E-2) on 17 November 1959 for inefficiency.  On 30 November 1959, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failure to obey a lawful order.

5.  On 15 January 1960, the commanding officer requested that the applicant be psychiatrically evaluated prior to being assigned overseas.  The examination resulted in a diagnosis of chronic, mild emotional instability reaction manifested by impulsivity and immature reaction to authority.  The examining psychiatrist concluded that overseas assignment would probably not be beneficial to either the applicant or the Army.

6.  A Department of Neuropsychiatry Certificate, dated 1 March 1960, shows the applicant was hospitalized on 24 February 1960 due to being completely unresponsive.  A drug overdose was suspected but testing proved negative and it was ultimately determined that the applicant simply chose not to respond.  

7.  Additionally, the Department of Neuropsychiatry Certificate, dated 1 March 1960, states the applicant reported a sexual encounter in which she was forced to have sex with a sergeant on the way back from a party.  The sergeant's wife reported the incident and the applicant related that an investigation resulted in her being reduced in rank.  She reported feeling very guilty about this incident and felt her coworkers were looking down on her because she was "fast."  Approximately 4 January 1960 she became fed-up with everything and went to her room, locked the door and refused to work.  




8.  Further, the resultant diagnosis was emotional instability reaction chronic, severe, unimproved; manifested by excitability, ineffectiveness, and withdrawal when confronted with minor stress, poor judgment, poorly controlled hostility, guilt and anxiety.  Separation under the provisions of Army Regulation 635-209 (Active Duty Enlisted Administrative Separations) was recommended.

9.  On 11 March 1960, the applicant acknowledged she had been counseled concerning elimination action.  She indicated that she had been offered an opportunity to consult with counsel and declined to do so.  She also declined to submit a statement in her own behalf. 

10.  On 14 March 1960 the commanding officer recommend separation with a general discharge.  The specific disciplinary actions were cited as follows: 

* reduction for inefficiency
* NJP for being absence without leave (AWOL) and failure to obey an order
* reprimand for failure to wear a proper uniform
* revocation of pass privileges
* NJP for insubordinate conduct
* reprimanded for missing work detail

11.  On 18 March 1960, the separation authority approved the recommendation and directed that the applicant be issued a general discharge.  

12.  On 18 March 1960, the applicant was separated under the provisions of Army Regulation 635-209 with a general discharge under honorable conditions and assigned SPN 264.

13.  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.  

14.  Army Regulation 635-200, which had superseded all other regulations for active duty enlisted administrative separations, 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.

15.  Appendix A (SPN and Authority Governing Separations) of Army Regulation 635-5 provided for the SPN and corresponding reason for separation/discharge.  The SPN later renamed Separation Program Designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPN "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-209 for unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been honorably discharged and her SPN should be upgraded because it is unjust and insulting.

2.  The applicant was discharged based on a proper psychiatric diagnoses and recommendation.  Her service was appropriately characterized as general under honorable conditions based upon her actual record which included six specified disciplinary events.  She was also properly issued a general discharge.

3.  However, the Nelson Memorandum requires that, in the absence of clear and demonstrable reasons to the contrary, the discharge must be recharacterized as honorable.  The applicant was not convicted by a general court-martial or more than one special court-martial and the provision applies. 

4.  The applicant's SPN reflects her narrative reason for discharge which was a character and behavior disorder.  Therefore, the SPN should not be changed.

5.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  Voiding the DD Form 214 issued to the applicant on 18 March 1960; and 
   
   b.  issuing her a DD Form 214 with the same date that shows an honorable character of service.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the SPN.




      _______ _   _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)                                         AR20100012168



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ABCMR Record of Proceedings (cont)                                         AR20100012168



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