BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029167 


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 (GD) to an honorable discharge (HD).

2.  He states, in effect, he made it known that he had hostile feelings towards his commanding officer and he was afraid the commander might do harm to him.  Instead of offering him help, such as counseling, he was summarily dismissed and issued a GD by mail.  The GD is not in keeping with his otherwise perfect service record.  He served as Squad Leader in Company E, 5th Battalion, 1st Regiment, Fort Jackson, SC in May 1966 when the company received outstanding scores.  After completing active duty he "attended Reserve duty to 1971."  In 1971, he was told his GD would be upgraded to an HD after 6 months.  He realized this had not been done when he applied for Social Security in May 2008.

3.  He provides no additional evidence in support of his application.

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 U.S. Army Reserve (USAR) on 25 January 1966 for a period of 6 years.  

3.  When he enlisted, he signed a "Statement of Acknowledgment of Understanding of Service Requirements."  By signing the form, he acknowledged he understood his obligation to participate satisfactorily in at least 48 scheduled drills per year and annual active duty for training (ANACDUTRA) (not more than 17 days per year) unless excused by proper authority.  

4.  He completed his initial entry training at Fort Jackson, SC on 6 August 1966 and was honorably released from active duty and returned to his USAR unit.  

5.  His DA Form 20 (Enlisted Qualification Record) shows he attended ANACDUTRA in November and December 1967. 

6.  On 24 June 1968, a physician stated he was under his care for pericarditis and he deemed it inadvisable for him to "take active duty" with his USAR unit.

7.  On 30 January and 6 June 1969, a physician signed Sick Certificates certifying the applicant was under his care from 25 to 26 January 1969.

8.  On an unspecified date in 1969, the applicant signed a memorandum, subject: Acknowledgment of Orders for ANACDUTRA [1969] and Travel ASSIGNMENT.  By signing the memorandum, he acknowledged he had been ordered to ANACDUTRA from 22 June to 6 July 1969.  The applicant handwrote a note on the memorandum stating, in effect, he would not be able to attend ANACDUTRA because he was still under a doctor's care.  

9.  On 6 and 16 June 1969, a physician stated, in effect, he was under his care for an injury to his lower back and advised against him participating in military training.

10.  On 2 August 1969, he was seen by an Army physician, as shown on a Standard Form 89 (Report of Medical History) in his record.  The form shows he reported he was generally in good health at the time with the exception of chronic pain and discomfort in his lower back.  A Standard Form 88 shows he was referred to an orthopedist for his back pain.

11.  On 4 October 1969, he was seen by an Army orthopedist, as documented on a Standard Form 513 (Consultation Sheet) in his record.  The examination showed he was resolving a sprain of the low back.

12.  On 20 November 1969, a physician stated he was suffering from a "very severe anxiety state" and he believed the applicant was unfit for military service because of this emotional disorder.

13.  On 10 April 1970, Headquarters, 97th USAR Command, sent a memorandum to the Commanding General, First U.S. Army that shows the applicant was counseled concerning his obligations under the provisions of Army Regulations 135-90 (Policies and Procedures Governing Satisfactory Participation) and 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), and he would be counseled concerning the proper procedures for submitting a request for a medical discharge.  The memorandum also shows the applicant underwent a physical examination in November 1969 and that the physical examination and all other medical records would be forwarded to the First U.S. Army Surgeon for evaluation.  The memorandum ends with the following paragraph:

Individual had not attended any scheduled assemblies since attendance at Annual Training 1969, providing the unit with statements from doctors.  He was scheduled for physical examinations on more than one occasion before he did report in November 1969.  The result of the physical was that he was qualified for retention.  He then started attending the unit's assemblies until the last assembly when he presented the unit with another certificate from a doctor.

14.  On 25 June 1970, an Army psychiatrist diagnosed him with passive aggressive personality and psychophysiologic reaction.  The psychiatrist found he had a personality disorder that was not grounds for a medical discharge and stated he was psychiatrically cleared for any administrative or judicial action deemed fit by his command.

15.  On 7 July 1970, Headquarters, 97th USAR Command, forwarded the applicant's physical examination and allied papers to the Commanding General, First U.S. Army, to be reviewed for his retention in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-29.  



16.  On 17 July 1970, Headquarters, First U.S. Army, informed the Commanding General, 97th USAR Command, the applicant was found medically qualified for retention in the USAR and recommended his administrative separation due to personality disorder.  

17.  On 26 March 1971, the applicant acknowledged he had been advised of the basis for the contemplated action to discharge him for unsuitability under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 7.  He acknowledged he had been afforded the opportunity to consult with counsel and declined counsel.  He waived consideration of his case by a board of officers and personal appearance before a board of officers and accepted discharge under honorable conditions.  

18.  Effective 14 April 1971, he was discharged from the USAR by Special Orders Number 113 Extract, issued by Headquarters, First U.S. Army.  The orders show the authority for discharge was Army Regulation 135-178, paragraph 7-5b(2), the type of discharge was a GD, and the reason for discharge was unsuitability. 

19.  His record is void of documentation showing he was the subject of disciplinary action during his service.

20.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  The version in effect at the time provided for separation for unsuitability due to inaptitude, character and behavior disorders, apathy, enuresis, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  

21.  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.  

22.  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.

23.  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.

24.  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 U.S. Army does not have, nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.

2.  The evidence shows he was examined by a psychiatrist who diagnosed him with a personality disorder that he found was not grounds for a medical discharge.  

3.  The evidence shows no record of disciplinary actions.

4.  Although he states he "was summarily given a dismissal," the available documentation shows otherwise.  He signed a memorandum indicating he understood he was being considered for discharge for unsuitability, waived his rights, and indicated his desire to accept a GD.  The record shows all requirements of law and regulation were met and he 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 14 April 1971 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 14 April 1971, 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)                                         AR20100029167



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ABCMR Record of Proceedings (cont)                                         AR20100029167



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