IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010502 


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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  He was prescribed medication after a family emergency.  Shortly thereafter, he was issued orders to go overseas.  He was advised that there were no medical facilities in the area he was to be assigned to accommodate him if he had adverse reactions to the medication.  He was then told that because he could not take the assignment he was to be discharged.

	b.  He was very young and he trusted the military.  He was given medication for a short-term nervous condition, not properly advised of his options, and then wrongfully discharged without just cause.

3.  The applicant provides his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge) and General Discharge Certificate.

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 12 April 1957.  He completed basic combat training and he was assigned for advanced individual training to the U.S. Army Security Agency Student Regiment, Fort Devens, MA, on 11 July 1957.

3.  Between July and October 1957, he went on sick call numerous times for complaints of/or treatment for persistent lower back pain.

4.  On 4 November 1957, he was admitted to the U.S. Army Hospital (USAH), Fort Devens.  His record contains a Standard Form (SF) 502 (Narrative Summary), dated 25 November 1957, wherein it stated, in part:

	a.  He was first admitted to the USAH, Fort Devens, because of complaints of persistent backaches.  Five years prior, he noted the sudden onset of pain in the mid-low back after lifting.  At that time, the pain responded to conservative treatment and he had minor recurrences since then.  

	b.  He was asymptomatic when he entered the Army but noted the same low back pain after arriving to Fort Devens in July 1957.  On 10 September 1957, an x-ray of the spine was taken and interpreted as probably within normal limits.  At the time of admission, his axial skeleton was held moderately strengthened and he had considerable tenderness over the entire spine.  There was some limitation in straight leg raising and bending at the hips, although backward and side movements were approximately normal.  

	c.  A definite diagnosis could not be made; however, the presumptive diagnosis of rheumatoid spondylitis should be considered and a course of bed rest and further salicylate therapy attempted.  It was felt that he should be transferred to another facility for more rigid observation and prolonged care.  The condition existed prior to his service (EPTS). 

5.  On 11 December 1957, the applicant was transferred to the U.S. Naval Hospital (USNH), Chelsea, MA.  His record contains a SF Form 600 (Chronological Record of Medical Care), dated 29 January 1958, wherein it stated, in part:

	a.  The applicant was given salycilates and was applied on a course of physiotherapy with back exercises which was carried out without any obvious results.  During the course in the hospital, it became evident that further psychiatric evaluation was in order and it was obtained on 20 December 1957.

	b.  On 14 January 1958, his diagnosis was changed to chronic, severe, passive-aggressive reaction, EPTS.  On 29 January 1958, he was discharged to the USAH, Fort Devens, for administrative action.

6.  On 11 March 1958, he underwent a neuropsychiatric evaluation at the Mental Hygiene Clinic, USAH, Fort Devens.  In a report, dated 11 March 1958, the examining physician stated, in part:

	a.  The applicant was a 21 year old single male who had been in the service for 10 months.  He had a history of recurrent backache for the past 6 years.  He had been hospitalized at Fort Devens for 6 weeks and was transferred to the Chelsea USNH for an additional 5 weeks.  At neither station was any organic pathology defined.  At Chelsea a neuropsychiatric report diagnosed him with a character disorder and recommended he return to Fort Devens for an administrative separation.

	b.  He was diagnosed with passive-aggressive personality reaction, as manifested by conversion symptoms as low back pain.  He was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and to cooperate in his own defense.  It was strongly recommended that he be administratively separated under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) to which there were no disqualifying mental or physical defects.  

7.  On 28 March 1958, the applicant was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-209, by reason of unsuitability.  He acknowledged receipt of the notification, that he was advised of the basis for the discharge action, and that he was advised of the procedures and rights available to him.  He requested consideration of his case by a board of officers and declined representation by legal counsel. 

8.  On 28 March 1958, the applicant's immediate commander recommended the applicant appear before a board of officers to consider him for discharge for unsuitability.  The commander stated all attempts to make a satisfactory Soldier out of the applicant had failed as he reported to sick call rather than perform his assigned duties.  A history of feigned illness constituted a problem within the company and medical examinations had disproven his frequent claims of illness. That, coupled with the neuropsychiatric evaluation, indicated he should be separated under the provisions of Army Regulation 635-209.

9.  On 28 April 1958, a board of officers convened.  On 30 April 1958, after reviewing medical and personnel records and hearing testimony from the applicant and his chain of command, the board found the applicant was unsuitable for further service because of a character and behavior disorder.  The board recommended he be discharged under the provisions of Army Regulation 635-209 by reason of unsuitability with the issuance of a General Discharge Certificate.  

10.  On 12 May 1958, the separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  On 21 May 1958, he was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209, by reason of unsuitability - character or behavior disorder (separation program number (SPN) 264) with an under honorable conditions characterization of service.  He completed 1 year, 1 month, and 10 days of creditable active service with no lost time.

12.  His record is void of any adverse actions or record of court-martial.

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

14.  Army Regulation 635-209, in effect at the time, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.


16.  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.  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 evidence of record shows the applicant's commander felt he could not or would not meet acceptable standards required of enlisted personnel as he repeatedly went on sick call and after numerous and prolonged treatments for his persistent complaints of low back no medical basis for his complaints were found. He was subsequently diagnosed with a character/behavior disorder manifested by conversion symptoms as low back pain.  Accordingly, his immediate commander initiated discharge action against him for unsuitability and he was discharged on 21 May 1958 with a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Nevertheless, the Brotzman Memorandum mandated that the presence of a personality disorder (formerly known as character and behavior 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.  The applicant in this case has no record of any adverse action.  Therefore, his discharge should be upgraded to fully honorable.






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:

* issuing the applicant a new DD Form 214 reflecting his character of service as honorable
* issuing the applicant an Honorable Discharge Certificate, dated 21 May 1958, in lieu of the General Discharge Certificate of the same date now held by him



      _______ _   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)                                         AR20140010502





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ABCMR Record of Proceedings (cont)                                         AR20140010502



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