IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110009823 


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 discharge to honorable.

2.  He states he does not believe the record to be in error or unjust.  He is just trying to upgrade his discharge.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a USAARMC Form 1479 (Individual's Statement of Waiver).

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 Regular Army on 6 October 1970.  

3.  An AH2LA Form 1172 (Report of Psychiatric Evaluation) shows he was examined on 12 March 1971 at the Mental Hygiene Consultation Service, Fort Knox, KY.  A psychiatrist found him to be mentally responsible and diagnosed him with immature personality type.  The examining psychiatrist recommended his discharge under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), stating he did not belong in the Army and would need help to adequately adjust to any life outside of the military.  

4.  On 12 April 1971, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 4 February to on or about 8 March 1971.

5.  On 10 May 1971, his commander notified him he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavioral disorders as determined by medical authorities.  

6.  On 12 May 1971, he acknowledged he had been advised by counsel of the basis for contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers and personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived his right to counsel.  He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

7.  On 18 May 1971, the separation authority approved his discharge and directed he receive a General Discharge Certificate (DD Form 257A).  On 25 May 1971, he was discharged accordingly.  He completed 7 months and 20 days of total active service with 32 days lost.

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

9.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and 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 and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

11.  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 was diagnosed with a character and behavior disorder by a psychiatrist and he was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 25 May 1971 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 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 a new DD Form 214 and an Honorable Discharge Certificate, dated 25 May 1971, in lieu of the DD Form 214 and 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)                                         AR20110009823





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ABCMR Record of Proceedings (cont)                                         AR20110009823



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