PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 June 2000                   
	DOCKET NUMBER:   AR2000037106

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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 under honorable conditions be changed to a medical retirement.

3.  The applicant states that he was medically disabled at the time of his discharge and was initially granted a service-connected disability from the VA at a 10 percent rating.  It has since been upgraded to 100 percent.

4.  The applicant’s military records show that he enlisted in the Regular Army on 25 June 1975.  He completed basic training and advanced individual training and was awarded military occupational specialty 76U (Communications/Electronics Repair Parts Specialist).  He was assigned to Korea and then to Fort Polk, LA.  While at Fort Polk, LA he received an enlisted evaluation report (EER) for the period ending October 1977.  His raters made several comments such as “…demonstrates that he is capable of handling any task set before him.”  In April 1978, the applicant was again assigned to Korea.

5.  On 9 May 1978, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.  

6.  On 19 June 1978, the applicant underwent a psychiatric evaluation.  After noting that the applicant had made numerous visits to the Community Mental Hygiene Activity with complaints that could not be confirmed by physical examination or neuropsychiatric observation, he was diagnosed as having a personality disorder, mixed type, with passive-aggressive and hypochondriacal features.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings.  No evidence was found of a mental disease, defect or derangement sufficient to warrant medical disposition.  He exhibited features of a character-behavior disorder.

7.  On 20 June 1978, the company commander initiated separation action under AR 635-200, chapter 13 for unsuitability based upon his lack of self-discipline.  On 22 June 1978, the applicant was advised of his rights by counsel.  He waived his right to consideration of his case by a board of officers, waived personal appearance before a board, and elected not to make a statement on his behalf.  He requested consulting counsel.

8.  On 6 July 1978, the appropriate authority approved the request and directed the applicant be issued a General Discharge Certificate.

9.  On 26 July 1978, the applicant was discharged under honorable conditions, in pay grade E-4, under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  He had completed 3 years, 1 month and 2 days of creditable active service with no lost time.
10.  The VA rating decisions are not available.  On 15 July 1983, the applicant made a statement in support of a VA claim in which he stated in part “…Since 1978 to the present date, I have been on various medications.  They have diagnosed my sickness from schizophrenia to psychosis to other mental disorders…”

11. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

12.  Army Regulation 40-501 governs medical fitness standards for enlistment and separation.  Paragraphs 3-35 and 3-36 state that personality, sexual or factitious disorders; disorders of impulse control not elsewhere classified; psychoactive disorders; and adjustment disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.

13.  Title 38, U. S. 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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, Chapter 13 contained the policy and outlined the procedures for separating an individual for unsuitability when it was clearly established that it was unlikely that he would develop sufficiently to participate in further military training and/or become a satisfactory soldier.

15.  Army Regulation 635-200, had been 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 26 July 1978 was accomplished in accordance with regulations then in effect.  Based upon his diagnosis of a personality disorder he was not eligible for separation through medical channels but only through administrative channels.

2.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

3.  However, it appears that 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.

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 26 July 1978.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 26 July 1978, in lieu of the general discharge of the same date now held by him.

3.  That the individual concerned be issued a new DD Form 214 reflecting the above mentioned corrections.
4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__eb____  __jhk___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037106	
SUFFIX		
RECON		
DATE BOARDED	20000613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.