BOARD DATE:	  21 May 2013 

		DOCKET NUMBER:  AR20120019290 


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 has explained his military service for 40 years when applying for employment.

	b.  he has never been in trouble with the legal system, he raised two honest and honorable sons, he was a Boy Scout leader for 11 years, and he led a productive life to the benefit of many.

	c.  he does not believe his discharge was inaccurately received at the time of separation, but it has been the only black mark in a life of serving others.

	d.  he's not seeking benefits, but he is just tired of explaining the most troubled weeks of his life.

3.  He provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 17 September 2012.


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 7 July 1972 for a period of
3 years.  He was ordered to Fort Leonard Wood (FLW), MO for basic training.

3.  His record contains a FLW Form 107 (Report of Psychiatric Evaluation), dated 18 July 1972, that shows he was evaluated by a military psychiatrist, who diagnosed him as having a severe schizoid personality disorder.  The psychiatrist indicated the applicant:

	a.  met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3;

	b.  did not have any disqualifying mental or physical defects to warrant disposition through medical channels;

	c.  had severe character and behavior disorders with no violent tendencies; however, he was not amenable to further rehabilitative effort or have the potential to become an effective Soldier;

	d.  was 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.

4.  As a result, the psychiatrist cleared him for any administrative decision deemed appropriate by the command.  He further recommended administrative separation, stopping the applicant's training immediately, and returning the applicant to the Reception Station to await discharge.

5.  On 24 July 1972, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  He was advised of his rights.

6.  He acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and he did not submit statements in his own behalf.

7.  The separation authority waived the chain of command's request for waiver of counseling and rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulation 635-212 with issuance of a General Discharge Certificate.

8.  On 2 August 1972, he was discharged accordingly.  He completed 26 days of total active service.

9.  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.

10.  Army Regulation 635-212, in effect at the time and in concert with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority.  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 635-200 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 a 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 upgrades of discharges based on personality disorders.


12.  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 administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  His psychiatric evaluation shows he was diagnosed with a severe schizoid personality disorder and he was discharged for unsuitability due to a character and behavior disorder with a general discharge.  His administrative separation on 2 August 1972 was accomplished in accordance with regulations then in effect.

3.  However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit.  As such, 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.  These new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability.

4.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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.  issuing the applicant an Honorable Discharge Certificate, dated 
2 August 1972, in lieu of the General Discharge Certificate of the same date he now holds; and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      ___________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)                                         AR20120019290



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ABCMR Record of Proceedings (cont)                                         AR20120019290



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