PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 March 2003
	DOCKET NUMBER:   AR2002078089

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Margaret V. Thompson		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 discharge under honorable conditions (general) be upgraded to an honorable discharge.

3.  The applicant states, in effect, that the character of his discharge is too harsh considering the nature of his offenses

4.  The applicant’s military records show that he was inducted into the Army on 29 April 1968 in Chicago, Illinois.

5.  On 29 July 1968, the applicant was convicted by a special court-martial of being absent without proper authority from 8 June until 16 July 1968 and of assaulting a private by striking him in the face with his fist and kicking him in the face with his foot.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay of $68.00 per month for 6 months.

6.  On 7 August 1968, the applicant was notified that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-212, due to unsuitability.  He acknowledged receipt of the notification and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

7.  The applicant underwent a mental status evaluation on 12 August 1968 and he was diagnosed with personality, sociopathic, with antisocial characteristics. The psychiatrist determined that he was an angry person who spent all of his interview time trying to convince the psychiatrist that his life pattern was one of antagonism towards authority and society and that he had never worked in civilian life and had no intention of working in military life.  The psychiatrist further determined that the applicant was not psychotic and that there was no indication that he needed to be discharged from the Army for medical or psychiatric reasons.  The psychiatrist determined that it was entirely possible that he would respond to further trial of duty by forcing some issue that would precipitate further recommendations for an administrative separation.  The psychiatrist recommended that his command not anticipate any significant improvement in his attitude or in the level of his function and he was cleared psychiatrically for discharge according to the provisions of Army Regulation 
635-212.

8.  On 15 August 1968, the appropriate authority approved the recommendation for discharge and directed that he be discharged under the provisions of Army Regulation 635-212 for unsuitability and that he be furnished a general discharge.  Accordingly, on 4 September 1968, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-212 for unsuitability based on a character and behavior disorder.  He had completed 1 month and 10 days of total active service and he had 88 days of lost time due to absences without authority and confinement.
9.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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

CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect.  However, the applicable regulations have changed since the time that he was discharged on 4 September 1968.

2.  The applicant was convicted once by a special court-martial prior to being referred to a psychiatrist for a mental status evaluation who diagnosed him with a personality disorder.  Shortly thereafter, he was discharged without further incident and under today’s standards his characterization of service would have been honorable.

3.  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 by showing that the individual concerned was honorably discharged from the Army on 4 September 1968 in lieu of the general discharge now held by him.

BOARD VOTE:  

___tap __  ___ra ___  __jak ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Thomas A. Pagan_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002078089	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/03/13	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1968/09/04	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	547	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  557	144.4200	
2.		
3.		
4.		
5.		
6.