BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100025412 


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 discharge to an honorable discharge.

2.  The applicant states he was advised when he left the Army that he should apply to have his discharge upgraded to honorable after leading a successful law-abiding life for 6 months. 

3.  The applicant provides 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.  On 13 December 1965, the applicant was inducted into the Army of the United States and he held military occupational specialty 76F (Quartermaster Parts Specialist).

3.  On 28 March 1966, he was admitted to Walter Reed Army Medical Center (WRAMC), Washington, DC, as a transfer patient from Kenner Army Hospital, Fort Lee, VA, after taking an overdose of an over-the-counter drug and being diagnosed with depressive reaction.  

4.  On 10 May 1966, he underwent a psychiatric evaluation while a patient at WRAMC.  He was diagnosed with schizoid personality and neurotic depressive reaction.  The examining psychiatrist stated the applicant's condition was part of a character and behavior disorder due to deficiencies in emotional and personality development to such degree that it rendered him unsuitable for further military service.  The examining psychiatrist recommended that the applicant be expeditiously, administratively separated and indicated he had no mental defects sufficient to warrant disposition through medical channels.  

5.  On 12 July 1966, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-209 (Personnel Separations) for unsuitability.  

6.  On 12 July 1966, the applicant acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.  He indicated he fully understood that if the discharge authority approved the recommendation for discharge, the discharge authority would determine the type of discharge he would receive.  He also indicated he voluntarily signed this acknowledgement of his own free will. 

7.  On 29 July 1966, the applicant's immediate commander initiated separation actions against the applicant under the provisions of Army Regulation 635-209 due to unsuitability, emotional instability.  The immediate commander stated the elimination action was based on the applicant's psychiatric evaluation.  He further stated the applicant had no record of nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) and his conduct and efficiency had been good during his assignment to the unit.  




8.  On 4 August 1966, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge action under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  On 12 August 1966, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 7 months and 28 days of creditable active military service with 2 days of lost time.  He was assigned separation program number (SPN) 264.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

11.  Army Regulation 635-200, which superseded Army Regulation 635-209, 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.

12.  Appendix A (SPN and Authority Governing Separations) of Army Regulation 635-5 provided for SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability-character and behavior disorder. 

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant’s quality of service did meet the standards of acceptable conduct and performance of duty for Army personnel.  He had no record of NJP or of a court-martial conviction and his immediate commander stated his conduct and efficiency were good during his assignment to the unit.  The applicant’s 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.  showing the individual concerned was separated from the service with an honorable discharge on 12 August 1966;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 12 August 1966, in lieu of the General Discharge Certificate of the same date now held by him; and

	c.  issuing him a new DD Form 214 reflecting the above corrections.



      _______ _ 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)                                         AR20100025412



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ABCMR Record of Proceedings (cont)                                         AR20100025412



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