PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:          6 January 1999
      
	DOCKET NUMBER:   AR1998013809

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to honorable.  He states that after spending time in the stockade no mention was made of being discharged.  He also notes that he was told the discharge would be automatically upgraded after 6 months.

3.  Records available to the Board indicate the applicant enlisted and entered active duty on 29 November 1960 at the age of 17 with 11 years of formal education and a GT score of 118.  The applicant successfully completed basic and advanced individual and was initially assigned as a security guard with the Army Element of the Joint Support Group in Washington, D.C.  In June 1961 he was reassigned to Germany as a military policeman.

4.  In September 1961, following some minor disciplinary problems, he was given a rehabilitation transfer from the military police unit to an engineer battalion.  Between November 1961 and January 1962 the applicant was convicted by a special court-martial (assault and theft) and a summary court-martial (AWOL), and punished three times under Article 15 of the UCMJ.

5.  In January 1962 the applicant’s unit commander initiated action to administratively separate the applicant from active duty for unfitness under the provisions of Army Regulation 635-208.  The applicant acknowledged receipt of the proposed separation, consulted with counsel and waived his attendant rights.

6.  A separation physical examination, conducted on 23 February 1962, found the applicant medically qualified for separation.  A mental status evaluation concluded that applicant was oriented, rational and coherent and “gives no evidence of abnormal thinking or behavior suggesting psychosis.”  He was diagnosed as having an emotional instability reaction.  The evaluating psychiatrist recommended the applicant be returned to duty until “command decision is reached as to whether or not he be retained in the service.  If it is decided he should be separated it should be done under provisions of Army Regulation 635-209.”

7.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.

8.  The proposed separation action, under the provisions of Army Regulation 635-208, was approved and on 19 March 1962 the applicant was discharged under other than honorable conditions (undesirable discharge).

9.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

10.  Army Regulation 635-200, chapter 5, currently in effect, provides that a soldiers separated as a result of a character, behavior or personality disorder, are discharged with an honorable characterization of service unless they had been convicted of an offense by general court-martial or convicted by more than one special court-martial.

CONCLUSIONS:

1.  The Board presumes that the applicant’s administrative separation was accomplished in compliance with applicable regulations then in effect.

2.  Nonetheless, the Board notes that the applicant was involved in only minor incidents of misconduct and as such an undesirable discharge seems unduly harsh in light of the fact that the applicant was determined to be suffering from a personality disorder by a psychiatrist.  Under today’s standards the applicant would have been honorably discharged.  Therefore, when viewed in light of current Army policy, the applicant’s discharge should be upgraded to fully honorable as a matter of equity.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was honorably discharged from active duty on 19 March 1962.

BOARD VOTE:  

___tdh__  ___lls__  ___cwb__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON