IN THE CASE OF:	   

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110021544 


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, in effect, his general discharge be changed to a medical discharge.

2.  The applicant states:

* Audie Murphy is his father
* he had no medical follow-up with the Department of Veterans Affairs (VA)
* he now has schizoaffective disorder and is at the VA in El Paso
* his dishonorable discharge was due to his schizoaffective disorder
* his schizoaffective disorder has caused a loss of his mental ability, life, near death experiences, family, and caused him to remain disabled
* he questions why his father's non-disclosed abuse was withheld
* he wants his Murphy name rights
* he has had nothing but trouble in El Paso
* he should have had the help he is receiving now in 1970

3.  The applicant provides:

* self-authored statements
* a medical record extract from the El Paso VA
* October 2011 appointment schedule


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 30 July 1969.  He completed training and was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade he attained while on active duty was private/E-1.

3.  On 13 November 1969, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) on or about 1 November 1969 until on or about 8 November 1969.

4.  On 14 November 1969, a request for the applicant's retraining in a new military occupational specialty (MOS) was submitted due to his fear of heights.  On 1 December 1969, the request was approved.

5.  A FLW Form 107 (Report of Psychiatric Evaluation), dated 5 January 1970, shows the following, in pertinent part:

   a.  The applicant was diagnosed with being emotionally unstable, personality disorder, severe.

   b. His condition did not require hospitalization, was not disabling, and presented no disqualifying mental or physical defect sufficient to warrant discharge.

   c. He was determined to be mentally responsible, both to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.

   d. His father died when he was about 5 years old and he and his 7 siblings were placed in various homes and institutions.

   e. He was sent to a couple of boys' ranches, stole a lot, and spent some time in a reformatory in 1965.

   f. His mother had a long history of mental problems and was currently institutionalized.

   g. He had mental hospitalizations in 1964 and 1965 and made 2 suicide attempts, once before coming into the Army and once while AWOL.

   h. He drank quite a bit and was depressed.

   i. He lost a brother in Vietnam and he joined the Army to be like his brother.

   j. The evaluator recommended the applicant's discharge, citing the applicant had decided that enlisting in the Army was a mistake.  The evaluator further stated the applicant was very likely to cause a lot of trouble and perhaps make another suicide attempt if he was forced to remain in the Army.

6.  On 21 January 1970 and after being notified of his commander's intent to initiate discharge action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability (character and behavior disorder), the applicant waived a personal appearance and consideration of his case by a board of officers, declined to submit statements in his own behalf, and waived his right to counsel.  

7.  The applicant indicated that he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He further acknowledged that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many and all benefits as a veteran under both Federal and State law.

8.  On 30 January 1970, the separation authority approved the applicant's discharge and directed the issuance of a general discharge certificate.

9.  On 5 February 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 5 months and 23 days of credible active military service.  He DD Form 214 shows he had 13 days of lost time.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11.  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.

12.  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.

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.

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 applicant's request for a medical discharge was carefully considered.

2.  Although the applicant requested a medical discharge, his FLW Form 107 shows his condition was evaluated by a medical doctor trained in psychiatry.  Further, his condition was determined to be non-disabling and his available record is void and he has failed to provide sufficient evidence showing he had a medical condition warranting evaluation through the Army Physical Disability Evaluation System (PDES).  

3.  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
5 February 1970 was accomplished in accordance with regulations then in effect.  

4.  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:

________  ________  ________  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 of partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by issuing him a new DD Form 214 and an Honorable Discharge Certificate, dated 5 February 1969, in lieu of the DD Form 214 and General Discharge Certificate he now holds.

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 award of 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)                                         AR20110021544



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ABCMR Record of Proceedings (cont)                                         AR20110021544



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