PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:         9 December 1998     
	DOCKET NUMBER:   AC98-12680
	                                    AR1998012222

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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, in effect, disability retirement.

3.  The applicant states he “underwent two psychiatric boards” prior to his discharge and was determined to be unfit because of his mental condition.  He notes that subsequent to his separation the VA granted him a 100 percent disability rating based on his condition.

4.  Records available to the Board indicate the applicant was a member of the Army Reserve when he was ordered to active duty in March 1969 for unsatisfactory performance and assigned to Germany.

5.  In May 1969 the applicant was diagnosed with a character and behavior disorder (passive-dependent personality, chronic, severe) by a physician trained in psychiatry.  It was determined that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and that the applicant was mentally responsible, able to distinguished right from wrong and to adhere to the right.  His unit commander initiated action to administratively separate the applicant for unsuitability based on the character and behavior disorder “which enable[s] the subject to handle only the most menial of job, repetitive shirking of duty for various ailments which have no detectable organic basis, and repetitive emotional outbreaks of aggressiveness.” The commander noted the applicant had been counseled on several occasions and recommended he receive a general discharge.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.

6.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

7.  Accordingly, he was discharged under honorable conditions on 15 September 1969 under the provisions of Army Regulation 635-212 for unsuitability due to a personality disorder.

8.  Subsequent to his separation the VA granted him a 100 percent disability rating for his “nervous condition.”

9.  Army Regulation 40-501, which establishes the standards of medical fitness for retention purposes, notes that while personality disorders may render an individual administratively unfit they are not a basis for disability retirement or separation.  Interference with performance of effective duty in association with a personality disorder is dealt with through appropriate administrative channels and not medical channels.

10.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for discharge due to unsuitability because of apathy by a displayed lack of appropriate interest and/or an inability to expend effort constructively.  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.  Army Regulation 635-212 was subsequently incorporated into a single regulation (AR 635-200) which governed all administrative separations.

12.  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 upgrades 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 were determined to be “clear and demonstrable reasons” which would justify a less than fully honorable characterization of service.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with regulations then in effect.

2.  The evidence of record indicates he did not have any medically unfitting disability that required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

4.  However, it now appears the applicant’s overall service record and his diagnosed personality disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memorandums.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 15 September 1969.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__jh____  __fne___  __tbr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.