PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            20 March 2001                  
	DOCKET NUMBER:   AR2000049136

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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, as the widow of a deceased former service member (FSM), that her husband’s discharge under other than honorable conditions be upgraded.

3.  The applicant states that the FSM’s conduct was excellent from August 1968 to July 1969.  She contends that the FSM’s mother died on 15 March 1969 and this was a very emotional time for him and that on 7 December 1969 his first child was born, which caused more stress.  In support of her application, she submits a letter of explanation; a copy of the FSM’s Death Certificate and their Certificate of Marriage.

4.  The FSM’s military records show that he enlisted on 29 July 1968 for a period of 3 years and trained as a supply clerk.  

5.  On 5 February 1969 nonjudicial punishment was imposed against the FSM for failure to obey a lawful order.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay and restriction and extra duty.

6.  The FSM was honorably discharged on 30 May 1969 for immediate reenlistment.  He reenlisted on 31 May 1969 for an assignment in Vietnam.  He served as a supply clerk in Vietnam from 25 August 1969 through 23 April 1970.  

7.  Unit Orders contained in the available records show that nonjudicial punishment was imposed against the FSM and he received a reduction in pay grade and forfeiture in pay on 31 March 1970.

8.  Medical evidence of record shows the FSM underwent a psychiatric evaluation on 23 April 1970 and was diagnosed with a passive aggressive personality.  The attending physician recommended that the FSM be separated under the provisions of Army Regulation 635-212 due to his passive aggressive personality.  

9.  The facts and circumstances surrounding the FSM’s discharge are not present in the available records.  However, his records indicate that on 23 April 1970 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year,
8 months and 26 days of total active service.

10.  There is no evidence in the available records to show that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 
  
11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate. 

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 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.  In the absence of evidence to the contrary, it must be presumed that the FSM’s separation was administratively correct and in conformance with applicable regulations then in effect.

2.  However, during processing for discharge, the FSM was diagnosed with a passive aggressive personality disorder by a psychiatrist.  

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. 

4.  Since the facts and circumstances surrounding the FSM’s discharge are not available to the Board, the Board is unable to determine whether there are “clear and demonstrable reasons” why a fully honorable discharge should not be given in this case.  Therefore, in view of the foregoing, the Board determined that a general discharge is appropriate.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the FSM’s records, but only as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the FSM was separated from the service with a general discharge under honorable conditions on 23 April 1970. 

BOARD VOTE:  

FNE____  RJW____  WDP____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000049136	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19700423	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.