PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           12 October 2000
	DOCKET NUMBER:   AR2000037910

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol Jo Suiter		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 (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

3.  The applicant states in effect that he risked his life for his country by spending two tours in the Republic of Vietnam (RVN) and that he has been a good citizen since being discharged.  He acknowledges that he made a mistake when he opted to take a GD, however, he felt that he had no alternative at the time.  He submits a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period of service ending 2 November 1972.

4.  The available records show that preceding the period of enlistment under review, the applicant completed two prior honorable periods of service in the Regular Army (RA) from 9 February-8 October 1968 and from 9 October 
1968-12 May 1970.

5.  On 13 May 1970, he reenlisted in the RA for a period of 6 years in pay grade E-4.  He served in military occupational specialties (MOS’s) 
67N (UH-1 Helicopter Repairman) and MOS 67A (Aircraft Mechanic Repairman).

6.  He served in the RVN during his prior period of service from 4 January 
1968-3 July 1969 and during the period of service under review from 13 July 1970 through 12 July 1971.  Upon return to the United States, he was assigned to Fort Knox, Kentucky.  

7.  Even though he received two nonjudicial punishments (NJP’s) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 1 September 1968 and on 20 April 1969 for minor military offenses, his conduct and efficiency ratings were excellent/excellent throughout his military service until October 1971.  Between October 1971 and November 1972, his conduct and efficiency ratings were unsatisfactory/unsatisfactory. 

8.  On 14 July 1972, the applicant departed his unit in an absent without leave (AWOL) status and returned to military control on 1 September 1972. 

9.  Apparently, while the applicant was AWOL, he contacted a civilian psychiatrist in Toledo, Ohio.  On 15 August 1972, he was referred to the Department of Psychiatry at the Medical College of Ohio.  A psychologist determined that he was quite depressed and that he suffered from a great deal of anxiety.  He was withdrawn, had difficulty concentrating and he showed schizoid features in his response pattern.  The examining official believed that the applicant showed reactive depression as a result of an inadequate personality.  The recommendation was that he be discharged from the service.

10.  On 21 August 1972, a psychiatrist on behalf of his civilian lawyer reviewed the psychologist’s report and interviewed the applicant.  The psychiatrist stated that his diagnostic impression coincided with that of the psychological evaluation. He believed that the applicant suffered from depressive neurosis.  He believed the degree of disability to be moderate.  He recommended that the applicant be separated from the service through either medical channels or that he be given some type of administrative discharge.

11.  On 26 September 1972 (sic), a DA Form 2496 (Disposition Form), requesting a mental evaluation shows that the applicant’s unit commander described the behavior that led to the request for the evaluation.  Prior to going AWOL, the applicant’s duty performance was unsatisfactory; it had been substandard since October 1971 and he showed no signs of improving.  He worked slowly and his performance was poor even though, physically he seemed to have the ability and endurance to perform well.  He adjusted to change slowly and he was uncooperative and inattentive.  He spent most of his time looking down while conversing and he spoke in a very low tone of voice.  He was withdrawn, shy and quiet.  He did not mix well with his peers and he appeared depressed.  

12.  On 21 September 1972, the Mental Hygiene Consultation Service at Fort Knox completed a report of mental evaluation.  The psychiatrist determined that the applicant suffered from a “reactive depression character disorder”.  At the time of his examination, the applicant stated that he had already had one nervous breakdown and that he was in severe depression.  He also stated that he was unable to function or to carry out his duties because of depression.  The examining official noted that he exhibited angry outbursts at superiors.  He lacked self-confidence and he was concerned that he was “crazy.”  He appeared haggard, troubled and unkempt.  He showed a large amount of anxiety but no suicidal ideation or signs of thought disorder.  Tests showed him to be depressed, schizoid, and that he had an inadequate personality.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and to participate in board proceedings.  The recommendation was for an administrative separation under the provisions of Army Regulation 635-212, for unsuitability. 

13.  On 22 September 1972, NJP was imposed against him for being AWOL from 14 July-1 September 1972.  His punishment included reduction from pay grade E-5 to pay grade E-4 and forfeiture of $205.00 pay per month for 2 months.

14.  On 25 September 1972, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 
635-212, for unsuitability.  The commander cited his inability to adapt to normal regimentation as the basis for the recommendation.

15.  On the same date, the applicant consulted with legal counsel.  He acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He also stated that he
understood the consequences of receiving an undesirable discharge.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He did not submit a statement in his own behalf.

16.  Also on 25 September 1972, the applicant’s commander recommended that a board of officers be convened under the provisions of Army Regulation
635-212, to determine whether the applicant should be discharged for unsuitability before the expiration of his term of service. 

17.  On 6 October 1972, the intermediate commander recommended that the applicant be separated with a GD.

18.  On 12 October 1972, competent authority approved the recommendation for discharge and directed the issuance of a GD, under the provisions of Army Regulation 635-212, for unsuitability.  

19.  On 2 November 1972, the applicant was discharged under the provisions of
Army Regulation 635-212, by reason of unsuitability due to apathy, defective attitude and inability to expend effort constructively with a GD.  He had completed 2 years, 4 months and 2 days on the enlistment under review and he had completed a total of 2 years, 3 months and 4 days of prior active military service.  He also had 50 days of lost time due to being AWOL during the enlistment under review.

20.  The available evidence does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

21.  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 of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted, a HD or a GD was issued as determined by the separation authority based upon the individual's entire record.

22.  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 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 were determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 provides, in part, when the separation of soldiers for the convenience of the Government is the prerogative of the Secretary of the Army (SA).  Except as delegated by this regulation or by special Department of the Army directives, it will be accomplished only by the SA’s authority.  The separation of any soldier of the Army under this authority will be based on a SA determination that separation is in the best interests of the Army. 

CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

2.  However, the applicant had a properly diagnosed personality disorder.  Evidence of record shows that this condition diminished his ability to expend his effort constructively.  Although his misconduct and behavior are not condoned, his offenses were not of a criminal nature.

3.  Considering the facts and circumstances of the case, and the Brotzman and Nelson memoranda, the Board determined that the interest of justice would best be served by granting him a fully honorable discharge under current standards. 

4.  Further, since the law precludes the Board from making a soldier’s record worse than it is currently constituted, it would be appropriate to change the reason for discharge to Secretarial Authority under the provisions of chapter 5-3, Army Regulation 635-200.

5.  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: 

a.  by showing that the GD the individual concerned received on 
2 November 1972 is void and is without force or effect; 

b.  by showing that he received a fully honorable discharge on 
2 November 1972 in accordance with chapter 5-3, Army Regulation 635-200, by reason of Secretarial Authority; and

c.  by issuing to the individual concerned an Honorable Discharge Certificate dated 2 November 1972, in lieu of the General Discharge Certificate of the same date now held by him.

BOARD VOTE:  

___jdm__  __jed___  __cjs____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      __John D. Miller____
		        CHAIRPERSON

INDEX

CASE ID	AR2000037910	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19721102	
DISCHARGE AUTHORITY	AR635-212 	
DISCHARGE REASON	A78.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7800	
2.		
3.		
4.		
5.		
6.