IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100024537 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  He states that as a result of a change in policy, his discharge should be upgraded to fully honorable.

3.  The applicant provides his discharge orders, discharge certificate, and an extract from a newspaper article.

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.  His record shows he enlisted in U.S. Army Reserve (USAR) on 19 May 1968.  Upon completion of initial entry training he was awarded military occupational specialty 73C (Pay Disbursing Specialist).  The highest rank/pay grade he attained while serving was the rank of private first class/pay grade E-3.

3.  His record contains a letter rendered by Dr. R. A. C____, Diplomate of the American Board of Psychiatry and Neurology on 25 May 1971.  The psychiatrist noted the applicant consulted him on 21 May 1971 for anxiety and other symptoms and that he appeared anxious and immature.  He mentioned the applicant had a history of becoming nauseated when required to work in both a hotel kitchen and the kitchen while attending basic training.  Since then for a week before and after Reserve weekend duty he had diarrhea.  For five or six days before weekend duty his leg or ankle would hurt.  

4.  The psychiatrist continued that in 1969 while at Penn State University the applicant saw a psychologist several times, but was no better.  In January 1970 he saw a psychiatrist, whom his aunt had seen for four years, but the visits did not help.  In 1970 at Reserve camp, during the time of the Kent State University troubles, practice riot drills were held, with guns, live ammunition and gas masks. He was aware that he could be ordered to shoot at people.  Since then his symptoms had worsened.  For the past 2 weeks he had been nervous, worrying and shaking, and lost 15 pounds.  He was indecisive about everything.  At basic training and at the last Reserve weekend, he took a blanket with him from home to sleep with.  It was 6 or 7 years old and gave him a feeling of security.

5.  The psychiatrist also noted his diarrhea was not responsive to medication and that he became increasingly disillusioned with the military.  He attested he was against the Vietnam War and would fight only if his family were directly threatened.  In college in 1969, he obstructed recruiting efforts.  He imagined killing officers because they had oppressed him personally.  He also had thoughts of cutting off a toe or going to Canada to escape activation.  

6.  The psychiatrist opined he was unsuitable for military service, either on Reserve weekends, summer camp or active duty.  He further opined that if the applicant was continued in Reserve service he would become more anxious with increasing insecurity and colitis, with danger of injury to himself or other military personnel, inability to carry out military duties, or going absent without leave (AWOL) and emigrating.  The psychiatrist diagnosed the applicant with having:

* Anxiety neurosis
* Psychophysiological gastrointestinal disorder, colitis
* Passive-aggressive personality, passive dependent type

7.  On 12 June 1971, he underwent a physical examination which revealed numerous psychophysiological symptoms and a history of being under psychiatric care.  As a result, he was issued a level-2 physical limitations profile for psychiatric reasons, but found fit for retention.

8.  His record contains a Standard Form 513 (Consultation Sheet) which shows he was evaluated for prolonged diarrhea and anxiety with obsessive-compulsive tendencies.  The examining psychiatrist diagnosed him as having a passive-aggressive personality, chronic, moderate; manifested by immaturity, low stress and frustration tolerance, inability to accept responsibility, negativity, and obstructionism.  He also noted physical ailments such as diarrhea, nausea, and sleeping difficulty.  He opined the applicant's condition would cause moderate impairment to further military service and that his condition existed prior to his entry into the military.  He concluded the applicant was psychiatrically cleared for any action deemed appropriate by the command.

9.  His record contains another letter from Dr. R. A. C____, Diplomate of the American Board of Psychiatry and Neurology, dated 21 July 1971.  The psychiatrist stated the applicant consulted him again on 9 July 1971, and telephoned him on 20 July 1971.  Since learning that his request for discharge from the Reserves was denied, he had grown more anxious and depressed than ever, with increase in psychosomatic symptoms of diarrhea and chest pain.  He opined the applicant was unfit for military service - specifically to serve in Reserve camp that summer.  His anxiety and depression would become more severe, with increasing inability to perform military duties and carry out his responsibilities.

10.  On 23 July 1971, he submitted a written request to his commanding officer asking to be excused from attending annual active duty training with his assigned unit during the period 10 July to 21 August 1971.  The reasons for his request were as follows:

* He was suffering from anxiety neurosis and psychophysiological gastrointestinal disorder, colitis
* Since learning of denial of his discharge request, he had become more depressed than ever
* His diarrhea problems had increased
* He had crying spells fairly often
* He feared an inability to perform military duties until he could clear up his problem with professional help
* He feared his depression would lead to a dependence on drugs

11.  On 28 September 1971, the applicant's unit commander notified him of the initiation of separation action against him under the provisions of Army Regulation 135-178 (Reserve Components - Separation of Enlisted Personnel) by reason of unsuitability.  The applicant was advised that the primary basis for this action was due to his personality disorder.  The commander noted he had no record of disciplinary actions.

12.  The commander informed the applicant he had the right to present his case before a board of officers, submit statements in his own behalf, to be represented by counsel, or to waive any or all of these rights in writing.  The applicant was also advised that legally-qualified counsel was available to advise him of the basis for the contemplated separation action.  The applicant acknowledged receipt of this notification, declined and waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, to submit statements in his own behalf, and representation by legal counsel.

13.  On 18 January 1972, the separation authority approved the applicant's separation under the provisions of paragraph 7-5b of Army Regulation 135-178 and directed he receive a DD Form 257A (General Discharge Certificate).

14.  Headquarters, First U.S. Army, Fort George G. Meade, MD, Special Orders 63, dated 3 March 1972, show he was discharged from the USAR on 18 January 1972 under the authority of paragraph 7-5b(2) of Army Regulation 135-178.  The type of discharge was "General" and the reason for his discharge was "Unsuitability."

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

16.  Army Regulation 135-178, 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.

17.  Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability), in effect at the time, set forth the policy and prescribed procedures for eliminating Regular Army enlisted personnel for unsuitability.  

18.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  It 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 a personality disorder (formerly known as character and behavior 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, 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.

19.  A second memorandum, dated 8 February 1978, 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.  The conviction by a 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.

20.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  It states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he was honorably discharged as a result of a change in policy was carefully considered and determined to have merit.


2.  The evidence shows he had no record of disciplinary actions.

3.  The evidence shows he was examined by a psychiatrist who opined he was unfit for military service due to his suffering from the following conditions:

* Anxiety neurosis
* Psychophysiological gastrointestinal disorder, colitis
* Passive-aggressive personality, passive dependent type

4.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 135-178 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  However, historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant's military service records should be corrected to show he was honorably discharged effective 18 January 1972 under the extraordinary provisions of the Department of the Army memorandum, dated 8 February 1978.

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 

issuing him an Honorable Discharge Certificate, dated 18 January 1972, in lieu of the General Discharge Certificate of the same date now held by him.




      _______ _   _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)                                         AR20100024537





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ABCMR Record of Proceedings (cont)                                         AR20100024537



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