IN THE CASE OF:	

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110019153 


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.  He states:

	a.  he was assaulted by a Motor Pool Sergeant while he was on active duty in 1965 with Headquarters, 501st Mobile Army Surgical Hospital.  The Motor Pool Sergeant drove him to the woods, they drank and talked, and he was physically attacked.

	b.  when he woke up, he was in the hospital and he was told if he did not say anything he would be released from active duty with full benefits.

	c.  his commander asked him what he thought of the military, but he doesn’t remember what he said.  As a result of his behavior, he was given a general discharge.

	d.  he is now addressing the assault and working with the Department of Veterans Affairs for treatment for Post Traumatic Stress Disorder.

3.  He provides no additional documents.


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 19 July 1962 for a period of
3 years.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four separate occasions for:

* wrongfully committing an assault upon a private (PV1)/E-1 on 19 January 1964
* being disrespectful to his superior noncommissioned officer (NCO) on
26 May 1964
* being derelict in the performance of his duties in that he negligently fell asleep while he was the Charge of Quarters of his unit on 24 July 1964
* disobeying a lawful order from his superior NCO on 8 November 1964

4.  On 27 March 1965, he underwent a psychiatric evaluation.  The psychiatrist noted the applicant’s mental conditions as passive-aggressive personality, chronic, severe, manifested by characteristic response to normal frustrations with anger, depression and antisocial (pseudo-psychotic) behavior, by resentment of authority and authority figures with strong iconoclastic goals and by impaired judgment and insight.  The applicant was cleared for administrative separation.

5.  On an unknown date, his company commander notified him of the proposed action to separate him under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) by reason of unsuitability.  He was advised of his rights.

6.  He acknowledged notification of the separation action, waived a hearing before a board of officers, waived his right to submit statements in his own behalf, and waived legal counsel.
7.  On 6 April 1965, the company commander recommended the applicant be discharged prior to his expiration of term of service under the provisions of Army Regulation 635-209 for unsuitability.  The company commander stated the applicant had an anti-Army attitude, he was an idealist who could not adjust to the Army, he seemed to lean toward suicidal tendencies, and he had been hospitalized twice in the past month.  The company commander recommended approval with an honorable discharge.

8.  On 10 April 1965, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 by reason of unsuitability with issuance of a General Discharge Certificate.  He was assigned a separation program number (SPN) of 264, which indicates he was discharged by reason of unsuitability, character and behavioral disorders.

9.  On 16 April 1965, the applicant was discharged accordingly.  He completed
2 years, 8 months, and 28 days of total active service.

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

11.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included:

	a.  inaptitude;

	b.  character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress;

	c.  apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; 

	d.  enuresis

	e.  chronic alcoholism; and

	f.  Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).
Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.

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 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’s service record is void of evidence which supports his contention he was assaulted by a Motor Pool Sergeant while he was on active duty in 1965.

2.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  However, the Brotzman 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.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.


4.  The Nelson Memorandum specified that the presence of a personality disorder (character and behavior disorder at the time) diagnosis would justify 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 does not show he was convicted by a general court-martial or by one or more special court-martial.  Therefore, it would be appropriate to upgrade his discharge to fully honorable based on his character and behavior disorder.

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:

	a.  voiding his current DD Form 214 with a general character of service;

	b.  issuing him a new DD Form 214 with an honorable character of service; and

	c.  issuing him an Honorable Discharge Certificate, dated 16 April 1965, in lieu of the general discharge of the same date 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)                                         AR20110019153



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ABCMR Record of Proceedings (cont)                                         AR20110019153



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