IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100019875 


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, in effect, correction of his records to show he received a medical discharge for physical unfitness and an honorable discharge.  He further requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his U.S. Naval Reserve (USNR) service in item 22a(2) (Other Service) and the revised total in item 22a(3) (Total). 

2.  The applicant states he enlisted in the USNR and was honorably discharged for enlistment in the Regular Army.  He adds that his enlistment documents show he was in good health and fully qualified.  He then states his medical records beginning 16 March 1970 provide evidence he had physical problems that caused repeated dizziness and fainting episodes.  He further adds he was physically ill and was subjected to emotional and psychological pressure to accept a personality disorder diagnosis and discharge.

3.  The applicant provides:

* his DD Form DD Form 214
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Standard Form 89 (Report of Medical History) 
* DA Form 20 (Enlisted Qualification Record) 
* DA Form 3286 (Statements for Enlistment)
* DA Form 3349 (Physical Profile)
* Standard Form 88 (Report of Medical Examination) 
* Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care)
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 records show he enlisted in the USNR on 2 November 1969 and was released for enlistment in the Regular Army.  On 2 March 1970 he entered the Regular Army.  He did not complete basic training.  He held pay grade E-2.

3.  His DD Form 4 shows he served 4 months and 0 days of total inactive federal (USNR) service prior to his enlistment in the Regular Army.

4.  His military records contain a Certificate, dated 22 April 1970, signed by a psychiatrist, which provides a report of the neuropsychiatric examination in the case of the applicant.  The report shows he was diagnosed as passive-dependent personality, chronic, severe, manifested by emotional dependence on others, marked indecisiveness, lack of self-confidence, and somatization such as syncope, dizziness, general weakness, and malaise.  The report indicated a predisposition of lifelong history of difficulty in handling stress, dependence on others for emotional support, and passive obstruction of worthwhile goals.  The report further provided he showed stress from routine military duty.  The report added there was no medical impairment for further military duty, it was not in the line of duty, and that his condition existed prior to service (EPTS).

5.  The neuropsychiatric examination report further states it was believed the applicant presented a character and behavior disorder of such a degree as to seriously impair his continued functioning in the military service.  The report further indicated there was no evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as outlined in Change 18, Army Regulation 40-501 (Standards of Medical Fitness). 
6.  A memorandum, dated 25 April 1970, provided by a chaplain who stated he had counseled the applicant on a number of occasions, indicated the applicant evidenced grief over the recent loss of his father which led him into a withdrawal pattern which rendered him incapable of adjusting to the normal demands of a Soldier.  He indicated that in his opinion the applicant was using his grief reaction as a means to avoid facing his responsibilities as a Soldier and attempts to orient him toward acceptance of responsibilities had failed.

7.  On 14 May 1970, the applicant was advised by his commander that discharge proceedings under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) had been initiated for his elimination from the service by reason of unsuitability.  He stated the basis for the proposed discharge was a character and behavior disorder as evidenced by the psychiatrist report.  The applicant was advised of his rights and acknowledged receipt of notification of elimination action being taken against him.

8.  On 15 May 1970, he was advised by consulting counsel of the basis for the contemplated separation for unsuitability under the provisions of Army Regulation 635-212.   He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He chose not to submit a statement in his own behalf.

9.  On 26 May 1970, the separation authority approved the applicant's elimination from the service for unsuitability and directed he be issued a General Discharge Certificate.

10.  On 28 May 1970, the applicant was issued a General Discharge Certificate under the provisions of Army Regulation 635-212 with a Separation Program Number (SPN) of 264.  Item 22a(1) (Net Service This Period) of the DD Form 214 issued shows he completed a total of 2 months and 27 days of active duty service.

11.  Army Regulation 635-5 (Personnel Separations-Separation Documents), Appendix A, in effect at the time, shows SPN 264 corresponded to character and behavior disorder.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

13.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board.  Those members who do not meet medical retention standards will be referred to a Physical Evaluation Board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

14.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16.  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 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. 

17.  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 applicant's DD Form 4 shows he served 4 months and 0 days of total inactive federal service prior to his enlistment in the Regular Army.  His DD Form 214 shows 2 months and 27 days in item 22a(1).  As such, it would be appropriate to correct his DD Form 214 to show:

* 4 months and 0 days in item 22a(2)
* 6 months and 27 days in item 22a(3)

2.  The applicant was not found medically disqualified.  Therefore, there is no basis for showing his discharge was for medical disqualification.

3.  There is no evidence of record nor has the applicant provided evidence to substantiate his contention that he was emotionally and psychologically pressured into accepting a personality disorder diagnosis or that he was "forced out" at the time of his discharge.  He was advised of the effects of a general discharge.  He was also afforded the opportunity to consult with counsel and to submit a statement in his own behalf, but he declined to do so.

4.  A separation for unsuitability with SPN 264 (character and behavior disorder), must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  The commander’s recommendation indicated the applicant’s separation was based on character and behavior disorders (now known as personality disorders) as evidenced in a neuropsychiatric examination report by a physician trained in psychiatry.

5.  While all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process, the Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

6.  The Nelson Memorandum 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.  While the applicant's military personnel record indicates his behavior and performance did not meet those expected of military personnel, his record does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade the applicant's general, under honorable conditions discharge to an honorable discharge based on his personality disorder and the absence of substantial instances of indiscipline.

7.  In view of the foregoing, the applicant's records should be corrected only to the extent as shown below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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.  amending item 22a(2) of his DD Form 214 to show 4 months and 0 days;

	b.  amending item 22a(3) of his DD Form 214 to show 6 months and 27 days;

   c.  issuing the applicant an Honorable Discharge Certificate, dated 11 February 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant; and

   d.  issuing the applicant a new DD Form 214 reflecting the above corrections.

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 showing his discharge was for medical disqualification.




      _________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)                                         AR20100019875



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ABCMR Record of Proceedings (cont)                                         AR20100019875



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