BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120019446 


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, change of his narrative reason for separation and upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect:

* when he was inducted into the Army of the United States, he was approached by two doctors at different times when he was taking his physical
* the first doctor stated he had the possibility of getting bilateral inguinal hernias and that he would get them sooner or later
* the second doctor told him he gave him an "L-2 classification" 
* he was told he would have problems in the service because L-2 is a limited activity to the lower extremities
* he was told if he had any trouble in basic training to tell them to check his medical file
* he broke his left femur in a car accident in 1963 and he had a rod put in  his leg
* it stuck out the end of his femur by an inch or so and a calcium deposit grew up around it
* he had the rod removed later after the femur healed but they did not remove the calcium deposit that should have been done
* up until the time he entered basic training, he never walked very far, ran, or stood for any length of time because it caused him a lot of pain
* he had a lot of trouble in basic training and he told his sergeant he had an "L-2 classification" in his medical record and his first sergeant told him there was no such paper in his medical file for an "L-2 classification"
* he was in so much pain but doctors stated they would not touch his leg because it was a preexisting condition
* he went through over 5 months of torture, pain, harassment, and living hell and he came out of the service with bilateral inguinal hernias and a hip that is now really messed up
* it came to a point where he and his sergeant had a few words and "had it out" in front of the orderly room
* it was not too much longer that he received a general discharge under honorable conditions and he believes that was another kick in the teeth
* he has had four hernias, multiple problems with his legs, and now his shoulders are going
* when he sits down he has to use his arms to getup because his legs are not strong enough
* when he got home it took a congressional investigation to get the paper from his medical record that had two pages with the "L-2" circled on it
* he believes he should have been medically discharged from the Army because he tried to get them to fix his problem and he begged them so he could stay in the service
* all the Army had to do was waive that part of the physical training test he could not do
* he believes he should have at least received an honorable discharge, not a general discharge
* the Army knew he was going to have problem; however, he was still inducted

3.  The applicant provides a self-authored statement, dated 17 September 2012 and Veterans Administration (VA) Regional Office letter, dated 30 January 1968.

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 was inducted into the Army of the United States on 3 October 1966.  His DD Form 47 (Record of Induction) shows that at the time of his induction he underwent a physical examination and he received an "L-2" physical profile.  He was found acceptable for induction into the Armed Forces.

3.  On 9 February 1967, the applicant underwent a psychiatric evaluation.  The psychiatrist diagnosed him with passive dependent personality, chronic, severe, manifested by marked passivity, poor stress tolerance, fluctuating emotional attitudes towards others and over-preoccupation with somatic symptoms when faced with separation from those on whom he is dependent.  Line of Duty – No, existed prior to service. 

4.  The psychiatrist stated 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 noted that the applicant was the youngest child in his family and:

* his parents were separated when he was very young
* he had always been a very passive individual
* since coming into the Army he had a marked increase in symptoms of leg pain secondary to an old injury and had been unable to function
* he was seen frequently at "STC" at which time he was frequently tearful
* he appeared to have become dependent emotionally on his fiancé
* his mental examination revealed no evidence of disqualifying mental disorder

5.  The psychiatrist recommended the applicant be separated from the Army under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability.

6.  On 20 February 1967, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability.  His commander cited his inability to adjust and meet the demand of military training as the basis for his recommendation.  The notification states that the applicant was counseled on three separate occasions by his platoon leader and on three occasions by his commander officer.  His commander stated the 

applicant was assigned to the unit on 10 January 1967 on recommendation of the Mental Hygiene Clinic, Ireland Army Hospital, Fort Knox, KY for assignment to the rehabilitation platoon of the organization for training to eliminate psychological defects manifested by extensive difficulty adapting to military life.  Since assignment to the unit he had consistently maintained a hostile attitude toward military service and had reacted with ineffectiveness and undependability under the slightest stress.  He habitually reported for sick call alleging numerous illnesses that had proven negative after examination by medical officials.  Since entering the service the applicant showed no desire or motivation to be helped through the training and treatment provided by his unit.  The commander stated he believed further efforts expended on the applicant would be of negative results.

7.  The applicant acknowledged receipt of the notification and after consulting with counsel, he waived his right to submit a statement in his own behalf.

8.  On 24 February 1967, the appropriate authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200 because of unsuitability and directed the applicant be furnished a General Discharge Certificate.  On 8 March 1967, the applicant was discharged accordingly.  He completed 5 months and 6 days of total active service.  The
DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-212, paragraph 6b, and assigned a separation program number (SPN) of 264 that relates to "unfitness – character and behavior disorder."

9.  A review of the applicant's available record fails to show he was suffering from any medical condition while he was in the Army that warranted him being processed through medical channels.

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

11.  The applicant provides a letter from the VA, dated 30 January 1968, that states that he received a zero percent service-connected disability rating for hernia, left, effective 9 March 1967.  The letter explains that residuals, fracture of left leg, and hernia, right were not incurred in or aggravated by service.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, 

and related policies and procedures.  It states the letters “PULHES” refer to the following body parts or organ systems:

* P – General physical condition, stamina, or any problem not addressed below
* U – Upper extremities and upper (cervical and thoracic) spine
* L – Lower extremities and lower (lumbosacral) spine
* H – Hearing and ear conditions
* E – Eyesight and eye conditions
* S – Psychiatric conditions

13.  The purpose of the standards contained in Army Regulation 40-501, chapter 2, is to ensure that individuals are medically qualified and are:

* Free of contagious diseases that would likely endanger the health of other personnel.
* Free of medical conditions or physical defects that would require excessive time lost from duty for necessary treatment or hospitalization or would likely result in separation from the Army for medical unfitness.
* Medically capable of satisfactorily completing required training.
* Medically adaptable to the military environment without the necessity of geographical area limitations.
* Medically capable of performing duties without aggravation of existing physical defects or medical conditions.

14.  Army Regulation 40-501, chapter 2 prescribes the medical conditions and physical defects that are causes for rejection for appointment, enlistment, and induction into military Service.  Unless otherwise stipulated, the conditions listed in this chapter are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history.  Other standards may be prescribed by the Department of Defense in the event of mobilization or a national emergency.  Those individuals found medically qualified based on the medical standards of chapter 2 that were in effect prior to the current publication will not be disqualified solely on the basis of the new standards.

15.  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, alcoholism, and enuresis.  A general or honorable discharge was considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) is the general regulation that governs 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 (formerly known as a character and behavior 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.

17.  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" that would justify a less than fully honorable discharge.

18.  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.

19.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated that the SPN code of 264 was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-212, by reason of unsuitability – character and behavior disorders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  There is no evidence in the available record, nor has the applicant submitted sufficient evidence, showing he was suffering from a medical condition at the time of his discharge that would have required him to be processed for discharge through medical channels.  Therefore, there is no basis for changing his reason and authority for discharge.

3.  The available evidence does show that the applicant was diagnosed with passive dependent personality, chronic, severe, manifested by marked passivity, poor stress tolerance, fluctuating emotional attitudes towards others and over-preoccupation with somatic symptoms when faced with separation from those on whom he is dependent.  He was discharged for unsuitability due to character and behavior disorder.  He had no convictions by a general or special court-martial. According to the Brotzman/Nelson memoranda, his general discharge should be upgraded to fully honorable.  Therefore, at this time his general discharge should be upgraded to an honorable discharge.

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 him an Honorable Discharge Certificate, dated 8 March 1967, in lieu of the General Discharge Certificate of the same date he now holds, and

	b.  issuing him a new DD Form 214 reflecting the above correction.

2.  The Board further determined 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 correcting his DD Form 214 to show he was medically discharged or changing his narrative reason for separation, in effect, changing his SPN code.



      _________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)                                         AR20120019446



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ABCMR Record of Proceedings (cont)                                         AR20120019446



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