IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001448 


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 or a medical discharge.

2.  The applicant states he received a total and permanent disability status after he was discharged and feels he should have received an honorable or honorable medical discharge.  He was discharged from a psychiatric unit at the time and was not diagnosed with bipolar disease which he currently suffers from.  It was determined by the Department of Veterans Affairs (VA) that he has a service-connected disorder.

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.  The applicant's records show he enlisted in the Regular Army on 13 November 1968 and he held military occupational specialty 63C (General Vehicle Repairman).  He was assigned to the 4th Training Battalion, Fort Bliss, TX.

3.  On 28 January 1970, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability and that this action could result in his separation with a general discharge.

4.  On 30 January 1970, he acknowledged notification of the discharge action being initiated against him and of the procedures and rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He waived consideration of his case by a board of officers, elected not to submit a statement on his own behalf, and waived representation by military counsel.

5.  On 4 February 1970, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unsuitability.  In the request, the commander stated discharge action was recommended due to the applicant's severe character and behavior disorders, inability to make proper value judgments, and because of his manifested incapacity to become a satisfactory Soldier.  The commander noted the applicant had been counseled on 13 different occasions by various members of his chain of command.

6.  The commander further stated that during the period from 12 September 1969 through 4 February 1970 the applicant's performance of duty had been unsatisfactory and the psychiatric evaluation indicated that rehabilitation would be futile.  The psychiatric evaluation is not available for review with this case.

7.  On 9 February 1970, the senior commander recommended approval of the applicant's discharge for unsuitability with a general discharge.  He stated the applicant's emotional instability and character disorders, as diagnosed by a psychiatrist, are character defects beyond normal rehabilitative capabilities and are detrimental to the morale of the unit.

8.  On 13 February 1970, the separation authority approved his discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the issuance of a General Discharge Certificate.  On 4 March 1970, he was discharged accordingly.  

9.  There is no indication in the available record that shows the applicant was ever hospitalized or treated for any mental disorder while serving on active duty.  There are no medical records for review with this case.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which superseded Army Regulation 635-212, 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.

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.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  

14.  Army Regulation 40-501 provides the medical fitness standards for retention and separation, including retirement.  Chapter 3 of this regulation lists the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-35 of the regulation currently in effect addresses personality disorders.  It states a history of, or current manifestations of personality disorders and other disorders of impulse control not elsewhere classified, render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the counseling he received on 13 occasions for his inability to make proper value judgments and his unsatisfactory duty performance.  Accordingly, his commander initiated separation action against him.  

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors.  The type of discharge directed and the reason for separation were both proper and equitable at the time.  However, it now appears his overall service record and his diagnosed personality disorder warrant upgrading of his discharge to fully honorable as directed by the above-referenced Army memoranda.  Therefore, he is entitled to an upgrade in his discharge to honorable.

3.  With respect to the medical discharge, although the applicant was diagnosed with a personality or character disorder that led to his discharge, by regulation, such conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels.  There is no evidence in the available record, and the applicant did not provide any evidence, that shows he was treated for, or diagnosed with, a medical condition while on active duty that would have rendered him unfit to perform his duties and/or result in a medical discharge.  Therefore, he is not entitled to a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  issuing the applicant an Honorable Discharge Certificate, dated 4 March 1970, in lieu of the General Discharge Certificate of the same date now held by him; and

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

2.  The Board further determined 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 the correction of his records to show he was medically discharged.



      _______ _   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)                                         AR20110001448





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ABCMR Record of Proceedings (cont)                                         AR20110001448



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