IN THE CASE OF:	 

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110007972 


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 under honorable conditions to honorable.

2.  The applicant states that his psychiatric problems were not detected prior to his enlistment and he was not responsible for his depression or emotional and psychiatric conditions.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 January 1965
* Standard Form 502 (Clinical Record – Narrative Summary), dated 11 November 1964
* DA Form 8-275-2 (Clinical Record Cover Sheet), dated 17 November 1964
* DA Form 8-274 (Medical Condition – Physical Profile Record), dated 17 November 1964

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 16 April 1964, the applicant enlisted in the Regular Army.  He successfully completed basic combat training and advanced individual training and he was awarded military occupational specialty 941.10 (Cook).

3.  On 6 November 1964, the applicant was command-referred to the U.S. Army Hospital, Nurnberg, Germany for inappropriate behavior, antagonism, homicidal and suicidal ideas, and sudden aggressive actions toward other Soldiers.  He was subsequently transferred to the 2nd General Hospital, Landstuhl, Germany.

4.  During the period 6-11 November 1964, the applicant underwent a command-referred psychiatric evaluation by a military psychiatrist.  The military psychiatrist diagnosed him as having moderate passive-aggressivity manifested by immaturity, inability to establish goals, entanglement of other people in trying to gratify his needs, and inability to contain anger and rage when he is frustrated.  The military psychiatrist further determined there was no psychiatric disease or defect which warranted disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.  The military psychiatrist recommended the applicant's return to duty on a trial basis.  If the applicant did not perform effectively as a Soldier, psychiatric clearance was granted for any and all administrative actions, including administrative separation as the command deemed necessary.

5.  On 7 December 1964, a Certificate of Unsuitability for Enlistment/
Reenlistment was initiated by his commanding officer barring the applicant from enlistment or reenlistment for his inability to conform to discipline or military life.  His commanding officer stated, "Since his arrival in my unit he has been involved in two serious incidents in which he has threatened bodily harm to his immediate supervisors.  I transferred him from the mess section to the ammo section in hopes of improving his behavior disorder but this met with little success."  On 9 December 1964, the applicant acknowledged receipt of the proposed action and elected not to submit a statement in his behalf.

6.  On 10 December 1964, the applicant's commander initiated a request to discharge the applicant for unsuitability under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).  On 15 December 1964, the applicant was advised of his rights and the effect of a waiver of those rights.  He was also advised of the basis for his separation under the provisions of Army Regulation 635-209.  The applicant waived consideration of his case by a board of officers, declined to provide statements in his own behalf, and waived representation by military counsel.

7.  On or about 14 December 1964, Headquarters, 4th Armored Division, approved the Certificate of Unsuitability for Enlistment/Reenlistment imposed against the applicant.

8.  On 16 December 1964 pursuant to his pleas, the applicant was convicted by a summary court-martial of drawing a knife on a superior noncommissioned officer and having a switchblade knife in his possession.  His sentence consisted of reduction to the lowest enlisted grade, a forfeiture of $45.00 pay per month for 1 month, and confinement at hard labor for 1 month.

9.  On 22 December 1964, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-209 for unsuitability.  On 30 January 1965, he was discharged under the provisions of Army Regulation 635-209 with a general discharge with a separation program number of 264 (character and behavior disorder) after completing 8 months and 20 days of creditable active service with 25 days of lost time due to confinement.

10.  The available evidence does not show the applicant has ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitation.

11.  Army Regulation 635-209, in effect at the time, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge as warranted by the individual's military record.

12.  Army Regulation 635-200 (Personnel Separations) 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 must include a diagnosis 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 the upgrade of discharges based on personality disorders.

13.  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 the 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.  A 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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was convicted once by a summary court-martial during his short period of service.  He was diagnosed with a character and behavior disorder by a military psychiatrist and he was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 30 January 1965 was accomplished in accordance with regulations then in effect.

2.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant in this case should receive an honorable discharge consistent with these standards.


BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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.  voiding the applicant's general discharge under the provisions of Army Regulation 635-209 that was issued on 30 January 1965 and issuing him a new DD Form 214 showing an honorable discharge with the same date; and

	b.  issuing him an Honorable Discharge Certificate from the United States Army, dated 30 January 1965 in lieu of the General Discharge Certificate he now holds.



      ____________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)                                         AR20110007972



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110007972



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1