BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018220 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states he was discharged due to a personality disorder which was a misdiagnosis.  During a recent assessment, a Department of Veterans Affairs (VA) Medical Center diagnosed him with bipolar disorder and awarded him a 30 percent combined disability rating.  He states the VA found his disorder to be service connected.  Therefore, his discharge should be upgraded to honorable.

3.  The applicant provides a copy of his VA service connected compensation document, dated 9 June 2010.

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 Regular Army on 28 March 1960 for a 3-year period with a moral waiver.  He completed his initial training and was awarded military occupational specialty 112.10 (Heavy Weapons Infantryman).  He served honorably and was discharged on 16 April 1962 for the purpose of immediately reenlisting. 

3.  On 17 April 1962, he reenlisted for 6 years.

4.  On 13 August 1962, he was reported absent without leave (AWOL).  On 2 January 1963, civilian authorities apprehended him and returned him to military control.  

5.  On 11 January 1963, the applicant was mentally evaluated by a Medical Corps officer who was the chief of the Mental Hygiene Consultation Service at Fort Sheridan, IL.  The applicant was diagnosed as suffering from Emotional Instability Reaction and his condition was “MODERATE, MANIFESTED BY AWOL, EXCITABILITY, INEFFECTIVENESS, UNDEPENDABLE JUDGMENT AND FLUCTUATING EMOTIONAL ATTITUDES.”  In addition, the doctor stated the applicant showed little motivation for becoming an adequate Soldier and he anticipated future difficulties if the applicant was retained in the military service.  He stated the applicant was free from mental defect, disease or derangement and the applicant was able to distinguish right from wrong, that he could adhere to the right and participate in his own defense.  The applicant was determined not to have a disability, mental or physical, that warranted separation under the provisions of Army Regulation 635-40 and Army Regulation 40-501, chapter 3.  It was recommended that he be administratively separated.

6.  On 24 January 1963, he was convicted by a special court-martial of being AWOL from 13 August 1962 to 3 January 1963.  

7.  On 12 March 1963, the applicant signed a statement indicating he was counseled and advised of the basis for his separation action.  In his statement, he acknowledged he had been furnished a copy of all related documents and his commander’s recommendation for separation.  He declined the opportunity to speak with counsel and have his case heard before a board of officers.  He concluded by indicating he did not desire to submit statements in his own behalf. 



8.  The applicant’s commander recommended separation under the provisions of Army Regulation 635-209 with issuance of a General Discharge Certificate.  He further stated the applicant’s conduct and efficiency ratings were unsatisfactory due to his AWOL history and conviction by a special court-martial.

9.  On 15 March 1963, the approval authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

10.  Accordingly, the applicant was discharged on 15 March 1963 for unsuitability under the provisions of Army Regulation 635-209.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows his total net active service was 2 years, 6 months, and 7 days with 164 days of lost time.  He was assigned the Separation Program Designator (SPD) code of 264 defined as a "character and behavior disorder," also known as a "personality disorder."  

11.  There is no evidence to show that the applicant applied to the Army Discharge Review Board, within its 15-year statute of limitations, for a discharge upgrade.

12.  In support of his application, the applicant provided his VA entitlement letter that shows he was granted service connected disability for Bipolar II Disorder and assigned a 30 percent rating effective 5 November 2009. 

13.  References:

	a.  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.  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.  


	b.  Army Regulation 635-200 (Personnel Separations) 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. 

	c.  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 Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for an upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

2.  The applicant's military records show that a Medical Corps officer examined the applicant and found evidence of a character and behavior disorder (now called personality disorder).  He was discharged accordingly.

3.  The applicant's record shows that during his second enlistment period, he was convicted by a special court martial for being AWOL 164 days.  There is no evidence that shows he was convicted by a general court-martial.  In addition, there is no evidence which shows "clear and demonstrable reasons" why a fully honorable discharge should not be given.  

4.  In summary, it is clear that the applicant was diagnosed with a character and behavior disorder that adversely affected his performance as a Soldier and this was the basis for his discharge.  As a result, it would be appropriate to upgrade his discharge to honorable based on his personality disorder.



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.  voiding the general discharge now held by the applicant;

	b.  correcting his DD Form 214 with a separation date of 15 March 1963 to show he was honorably discharged; and

	c.  issuing him an Honorable Discharge Certificate, dated 15 March 1963, in lieu of the general discharge of the same date now held by the applicant.



      __________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)                                         AR20100018220



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ABCMR Record of Proceedings (cont)                                         AR20100018220



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