IN THE CASE OF:	  

		BOARD DATE:	    21 July 2011

		DOCKET NUMBER:  AR20110001247 


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 upgrade of his general discharge to an honorable discharge.

2.  He states he accepted this type of discharge in lieu of waiting for a medical discharge because he thought it would be changed in six months.  

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and discharge orders.  

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 was inducted into the Army of the United States on 15 December 1965.  
3.  He underwent a psychiatric evaluation on 10 January 1966 and he was diagnosed as having syncope [fainting], vasovagal [involving the influence of the vagus nerve on circulation], precipitated by anxiety, not organically caused and an immature personality disorder manifested by financial irresponsibility and difficulty accepting discipline.  The psychiatrist recommended that the applicant be separated from the service under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) for unsuitability based on his diagnoses.  

4.  On an unknown date, his company commander notified him of the proposed action to separate him under the provisions of Army Regulation 635-209 by reason of unsuitability.  

5.  He acknowledged notification of the separation action, waived a hearing before a board of officers, waived his right to submit statements in his own behalf, and waived legal counsel.

6.  The company commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-209 because of inaptitude with the issuance of a General Discharge Certificate.  The company commander cited the reasons for separation based on the applicant’s psychiatric evaluations and the strong possibility of a chronic malinger.  Further, the company commander stated the applicant had undergone extensive medical and psychiatric examinations.  Both the medical doctor and the psychiatrist recommended discharge under the provisions of Army Regulation 635-209 since their impressions were that the applicant would continually be on sick call with a variety of ailments.  

7.  The separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 by reason of unsuitability with issuance of a General Discharge Certificate.  

8.  He was discharged on 24 March 1966 under the provisions of Army Regulation 635-209 for unsuitability.  He had completed 3 months and
10 days of total active service.  He was issued a General Discharge Certificate.  

9.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  This regulation 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.

12.  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 contends that he accepted this type of discharge in lieu of waiting for a medical discharge because he thought it would be changed in six months.  However, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  

2.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  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.

4.  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" that a fully honorable discharge should not be granted.  

5.  His military personnel record doesn’t contain any disciplinary actions. Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his personality disorder and the absence of substantial instances of indiscipline.

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.  issuing him an Honorable Discharge Certificate, dated 24 March 1966, in lieu of the General Discharge Certificate of the same date he now holds; and
	b.  issuing him a new DD Form 214 reflecting the above correction.



      _______ _  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)                                         AR20110001247





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001247



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1