IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110015145 


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 his discharge characterized as under honorable conditions be changed to a medical discharge.

2.  He states he was discharged due to a medical condition that started or was aggravated during his military service.  He adds he feels he served honorably and his discharge should reflect his honorable service.

3.  He 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 record shows he was inducted into the Army of the United States on 21 January 1970.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 15 August 1970 to 17 August 1970.

4.  His complete separation packet under the provisions of Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) is not contained in his available military records. 

5.  However, his records show that on 11 February 1971 he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  The psychiatrist diagnosed the applicant with a character disorder.  He also determined that:

   a.  The predisposition was severe with slight precipitating stress and considerable impairment for military duty.  The applicant had problems adjusting to authority figures for many years, dating from childhood.  As a child, the applicant was hospitalized in an institution because his mother could not control him.  
   
   b.  The applicant's condition was not amenable to hospitalization, treatment in a military setting, disciplinary action, training, or reclassification to another type of duty.  The applicant was unable to deal with authority, he went AWOL, and received five Article 15's.  
   
   c.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He had no disqualifying mental defects sufficient to warrant disposition through medical channels.

6.  On 18 February 1971, the company commander recommended the applicant be separated under the provisions of Army Regulation 635-212, because of a character and behavior disorder with the issuance of a General Discharge Certificate.

7.  Although a copy of the applicant's consultation with military counsel concerning the commander's recommendation that he be discharged under the provisions of Army Regulation 635-212 for unsuitability is not contained in the available record, his DD Form 214 shows he was discharged on 5 March 1971, under the provisions of Army Regulation 635-212 with a separation program number of 264.  His characterization of service was listed as under honorable conditions.  He was credited with completing a total of 1 year, 1 month, and 15 days of active service with 8 days listed as lost time.

8.  His record is void of any evidence or documentation that shows he either requested or was recommended for processing through the physical disability system.  

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.

10.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability for several existing conditions to include character and behavior disorders.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.  

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It 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. 



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.  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 argues, in effect, that his discharge should be changed to a medical discharge with an honorable characterization of service because he had a medical condition that started in or was aggravated during his military service.  

2.  The available evidence shows the applicant was separated for unsuitability due to a character and behavior disorder.  Additionally, the mental evaluation conducted at the time of discharge confirms that he was able to distinguish right from wrong and adhere to the right.  The mental evaluation also confirms that he had no disqualifying mental defects sufficient to warrant disposition through medical channels.  In view of these facts, the applicant's contention that he should have received a medical discharge is not supported by the available evidence.  

3.  However, based on the applicant being diagnosed as having character and behavior disorder, his application for a medical discharge was reviewed under the criteria specified in the Brotzman Memorandum.  This 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.

4.  Additionally, the Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify an 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.  

5.  The applicant's military personnel record contains no convictions by court-martial.  His record of indiscipline does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  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:

________  ________  ________  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 5 March 1971, 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 that 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 a medical discharge.



      _________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)                                         AR20110015145



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ABCMR Record of Proceedings (cont)                                         AR20110015145



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