PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            21 April 1999
	DOCKET NUMBER:   AR1999023292

	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. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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 general discharge be upgraded to honorable. 

3.  The applicant states, in effect, that he was not aware until December 1997 that he could request an upgrade of his discharge.  

4.  The Veterans of Foreign Wars, as counsel for the applicant, contends that the applicant’s discharge is inequitable and warrants recharacterization to honorable because his inadequate personality with passive aggressive traits impaired his ability to serve.  Counsel cites the Lipsman vs. Brown settlement with the Army in which they agreed regulations would be amended to require that an honorable discharge would be issued for individuals separated for unsuitability by reason of a character and behavior disorder if they had no convictions by general
court-martial and not more than one conviction by a special court-martial.  Counsel contends that the settlement in the Lipsman vs. Brown requires the Board to consider the presence of a personality disorder diagnosis as a mitigating factor that justifies relief except in cases where there are clear and demonstrable reasons why a fully honorable discharge should not be given.  Based on the foregoing, counsel requests that the applicant’s discharge be upgraded to honorable.   

5.  The applicant’s military records show that he enlisted on 24 February 1969 for a period of 2 years.  He successfully completed his training and was transferred to Germany for duty as a medical corpsman.     

6.  Between 28 October 1969 and 1 May 1970, nonjudicial punishment was imposed against the applicant on four occasions for being AWOL (two specifications), sleeping while on duty, failure to repair, and possession of hashish.

7.  On 29 April 1970 the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unsuitability.  

8.  On 1 May 1970, the applicant acknowledged notification of his pending separation under the provisions of Army Regulation 635-212, waived his right to a hearing before a board of officers and elected not to make a statement in his own behalf.  

9.  The applicant underwent a psychiatric evaluation on 1 May 1970 and was diagnosed with an inadequate personality with passive aggressive traits.  The psychiatrist determined that the applicant was a very immature individual who did not seem to be able to adjust even with special attention and that rehabilitation would appear to be fruitless in view of his past behavior.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. 
10.  On 4 May 1970 competent medical authority determined that the applicant met the retention medical standards prescribed in chapter 3, Army Regulation 
It was determined that he was mentally responsible; able to distinguish right from wrong and to adhere to the right; and has the mental capacity to understand and participate in board proceedings.

11.  On 9 May 1970 the applicant’s commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-212, paragraph 6b(2), for unsuitability by reason of character and behavior disorders.  He cited as the basis for his recommendation the applicant’s psychiatric diagnosis of inadequate personality with passive aggressive traits and that his gross immaturity, use of drugs and general inability to perform and work satisfactorily at any job for any length of time made him unsuitable for retention in the military.

12.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, paragraph 6b(2), on 13 May 1970, and directed that he be issued a General Discharge Certificate.

13.  Accordingly, he was discharged under other honorable conditions on
23 May 1970 under the provisions of Army Regulation 635-212 for unsuitability.  He had served 1 year and 3 months of total active service.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  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.

15.  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 was 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.  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. 

CONCLUSIONS:

1.  The applicant’s administrative separation on 23 May 1970 was accomplished in accordance with regulations then in effect.

2.  However, the applicant also had a character and behavior disorder which diminished his ability to perform and work satisfactorily at any job for any length of time in the military.  Although his misconduct and behavior is not condoned, his offenses were not of a criminal nature.  

3.  In view of the foregoing, it appears that the above-mentioned memorandums should be applied to his case and his discharge should be upgraded to honorable.

4.  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 23 May 1970. 

2.  That the Department issue to him an Honorable Discharge Certificate, dated 23 May 1970, in lieu of the general discharge of the same date now held by him.

BOARD VOTE:  

___cmf __  ___sk___  __gg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Calvin M. Fowler______
		        CHAIRPERSON

INDEX

CASE ID	AR1999023292	
SUFFIX		
RECON		
DATE BOARDED	1999/04/21	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1970/05/23	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNSUITABILITY	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.  756	A86.00/144.8600	
3.		
4.		
5.		
6.