IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130021713 


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 an upgrade of his general discharge (GD) to an honorable discharge or receipt of a medical discharge.

2.  The applicant states he thinks the Army did not have the proper equipment to detect his heart problem in 1970; however; his doctors treated him very well.  He further states it could have been a simple error, as it certainly was not intentional.

3.  The applicant provides:

* Botsford General Hospital document extracts (5 pages)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* State of Michigan Certificate of Live Birth
* Ann Arbor Veterans Affairs Medical Center document extracts (5 pages)

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 military record shows he enlisted in the Regular Army on 20 May 1970, for a period of three years.  On 25 August 1970, the unit commander referred him for psychiatric evaluation.

3.  On 9 September 1970, while attending basic combat training, he underwent a psychiatric examination.  The attending psychiatrist indicated:

   a.  The applicant was diagnosed with having a dependent personality disorder with depressive features related to his current status as a basic trainee.  He had a lifelong predisposition.  There was no medical impairment for further military duty, his condition existed prior to military service (EPTS), and it did not incur in the line of duty.
   
   b.  There was no evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as outlined in Chapter 24 of Army Regulation 40-501 (Standards of Medical Fitness), Section XV.
   
   c.  He was mentally responsible both to distinguish right from wrong and adhere to the right.  He had the mental capacity to understand and participate in board and other legal proceedings.
   
   d.  It was not believed his condition was amenable to any form of punishment, retraining or other forms of rehabilitation within the military setting.
   
   e.  He was psychiatrically cleared for any appropriate administrative action.

4.  On 21 September 1970, the unit commander recommended that his elimination from the Army under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability.  He indicated the basis for this action was the applicant's:

   a.  inability to adjust to military service as evidenced in his medical and psychological reports; and
   
   b.  apathetic attitude and his one instance of attempted suicide.

5.  On 23 September 1970, the applicant acknowledged notification of the pending separation action.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for unsuitability and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.

6.  On 25 September 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unsuitability, with the issuance of a General Discharge Certificate.  

7.  On 30 September 1970, the applicant was discharged accordingly.  The      DD Form 214 he was issued at the time shows he completed 4 months and      11 days of total active service.  This document further shows in item 11c (Reason and Authority), Army Regulation 635-212 and separation program number (SPN) 264, which indicate he was separated due to a character and behavior disorder.  Item 13a (Character of Service) shows he was separated under honorable conditions with a General Discharge Certificate.

8.  There is no evidence of record to show the applicant made a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

9.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability due to character and behavior disorders.  When separation for unsuitability was warranted, an honorable or GD was issued as determined by the separation authority based upon the individual's entire record.

10.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) was updated and included the categories of separations previously governed by Army Regulation 635-212.  A Department of the Army (DA) message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder.”

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 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.

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 (SPCM) was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

13.  Army Regulation 635-200, currently in effect, paragraph 5-13 states when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they have been convicted of an offense by general court-martial or convicted by more than one special court-martial during the current enlistment.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of the applicant’s discharge stipulated that the 
SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD.

2.  The available evidence shows he was separated due to a personality disorder.  It further shows his separation processing was accomplished in accordance with the applicable regulation and his discharge accurately reflected his overall record of service.

3.  However, 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.  Under current regulations, members separated by reason of a personality disorder (character and behavior disorder) must be issued an honorable discharge unless they have been convicted by a general court-martial or more than one special court-martial.

4.  Therefore, based on current standards and in the interest of equity, the applicant should be issued an honorable discharge.

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 issuing the applicant a new DD Form 214 and Honorable Discharge Certificate, dated 30 September 1970, in lieu of the DD Form 214 and General Discharge Certificate that is held by the applicant.



      _______ _   ___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)                                         AR20130021713





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ABCMR Record of Proceedings (cont)                                         AR20130021713



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