IN THE CASE OF:	 

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110011864 


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.  The applicant states he got out of the Army early for his inability to adapt to military life.  He had a clean record of service and was told the character of service could be changed at any time.  Further, he needs his discharge changed to honorable so he can be buried in the M.J. "Dolly" Cooper Cemetery in South Carolina.

3.  The applicant provides no additional evidence.

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 November 1956.

3.  A psychiatric evaluation, dated 16 June 1958, found the applicant was totally unsuitable for military service by reason of a profound personality disorder which was lifelong.  He would unquestionably continue to be unable to perform his duties adequately and would be a liability to the U.S. Army.  Further, the medical officer stated the applicant was a proper candidate for administrative separation under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability) because of inadaptability and he should be separated as expeditiously as possible, provided his command concurred.

4.  On 21 July 1958, his company commander notified him of the proposed action to separate him under the provisions of Army Regulation 635-209 by reason of inadaptability and recommended that he appear before a separation board.

5.  On the same day, he acknowledged notification of the separation action, requested counsel, and elected not to have witnesses called on his behalf.

6.  On 23 July 1958, the separation board convened and after hearing witness testimony found the applicant did not possess the required degree of adaptability for military service even after reasonable attempts had been made to reclassify and reassign him in keeping with his abilities and qualifications.  The board recommended his discharge from the service because of inaptness.

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

8.  Accordingly, he was discharged on 15 August 1958 under the provisions of Army Regulation 635-209.  He completed 1 year, 9 months, and 10 days of total active service and 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 inaptitude or unsuitability.  Action would be taken to discharge an individual when it was determined through proper board action that the individual could not be developed to the extent where he could be expected to absorb further military training and/or become a satisfactory Soldier for any of the causes mentioned in paragraph 2 pertaining to inaptitude.

11.  Army Regulation 635-209, paragraph 2, stated that discharge for inaptitude would be effected when it was determined that an individual did not possess the required degree of adaptability for military service after reasonable attempts had been made to reclassify and reassign him in keeping with his abilities and qualifications.

12.  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 the upgrade of discharges based on personality disorders.

13.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge.

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 discharge upgrades based on personality disorders.  Therefore, his 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 the 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 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 general discharge now held by the applicant,

	b.  showing he was discharged from the service with an honorable character of service on 15 August 1958, and

	c.  issuing him an Honorable Discharge Certificate, dated 15 August 1958.



      __________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)                                         AR20110011864



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ABCMR Record of Proceedings (cont)                                         AR20110011864



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