IN THE CASE OF:	  

		BOARD DATE:	  9 December 10

		DOCKET NUMBER:  AR20100015417 


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.  He states he wants to know if his discharge can be changed to fully honorable or if it is necessary or not.  If not, leave it as it is.

3.  He provides 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 was inducted into the Army of the United States on 13 May 1965.  He was assigned to Fort Jackson, SC for basic combat training.

3.  He underwent a psychiatric evaluation on 11 June 1965 which determined he had a character or behavior disorder classified as personality, emotionally unstable, chronic, moderate, with limited literacy.  The psychiatrist stated the applicant’s condition represented a long-standing, refractory personality disorder which indicated he was not amendable to disciplinary action, psychotherapy, reclassification, or reassignment.  

4.  On an unknown date, his company commander notified him of the proposed action to separate him under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) by reason of unsuitability.  

5.  On 25 June 1965, he acknowledged notification of the separation action, waived legal counsel, and waived hearing by a board of officers.  He also elected not to submit statements in his own behalf.  

6.  In the company commander’s recommendation, he stated the applicant had been counseled numerous times in reference to his poor performance of duty, attitude during counseling had not been good, and his every day appearance was fair.  It was also noted that he had no record of punishment under Article 15, Uniform Code of Military Justice (UCMJ) and no record of any court-martial actions.

7.  The separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 by reason of unsuitability with issuance of a general discharge.

8.  He was accordingly discharged on 4 August 1965 under the provisions of Army Regulation 635-209 for unsuitability.  He had completed 2 months and
22 days of total active service.  He was issued a General Discharge Certificate.  

9.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

10.  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 (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d), enuresis, (e) chronic alcoholism; and (f) Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  This 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 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.

12.  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:

The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  However, it appears his overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.


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 him an Honorable Discharge Certificate, dated 4 August 1965, in lieu of the General Discharge Certificate of the same date he now holds and

	b.  issuing 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)                                         AR20100015417



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ABCMR Record of Proceedings (cont)                                         AR20100015417



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