MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 December 1998                  
	DOCKET NUMBER:   AC98-11326

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his undesirable discharge be corrected to a medical discharge.

APPLICANT STATES:  That when he returned to military control after serving 6 months of a 1 year sentence to confinement for simple battery, he was seen by a psychiatrist.  The psychiatrist told him that he had mental problems and could either accept a medical discharge, rated 30 percent disabled, or be dishonorably discharged.  Due to his defiance against the system, he chose the dishonorable discharge.  He contends that he should never have been given that choice, that the Army should have medically discharged him without his consent.  The applicant also requests the Board consider that he waived his right to an honorable discharge when it was discovered that he had erroneously enlisted for a 2-year term of service, and that he has spent the majority of his life after being discharged in prisons.  He states that he is trying to get his life back together. 

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army for 2 years in pay grade E-1 on 6 February 1969.  He was 17 years old at that time.

He was awarded the military occupational specialty of infantryman and was stationed at Fort Carson, Colorado.

Between 28 April and 23 September 1969 he accepted nonjudicial punishment under Article 15, UCMJ, on 3 occasions for dereliction of duty, disobeying a lawful order, and disobeying a lawful command.

He went AWOL on 9 December 1969.  While AWOL he was arrested by civil authorities for theft and simple assault.  He was found guilty on both charges and sentenced to 30 days confinement for the theft conviction, and 6 months confinement for the assault conviction.

When he was returned to military control, he was tried by a special court-martial for theft.  He was found guilty to the charge and specification contrary to his plea of not guilty and was sentenced to 35 days confinement at hard labor, a forfeiture of $50.00 a month for 3 months, and a reduction from pay grade E-3 to E-1.

On 8 July 1970 the applicant’s commander notified him of his intent to recommend his discharge due to unfitness.

On 20 July 1970 a neuropsychatric report was prepared on the applicant.  In that report it was determined that the applicant had no disqualifying mental defects sufficient to warrant disposition through medical channels and, therefore, was cleared for elimination action by his command.  That report did specify that the applicant had been seen by the mental health clinic on several occasions complaining of aggressive behavior and feelings that he may lose his temper and hurt someone.  He was said to have continued difficulty tolerating frustration and acting impulsively and had been prescribed tranquilizers.

The applicant was also given a separation physical examination wherein he was determined medically qualified without any profile limitations.

The applicant then waived all of his rights in conjunction with the discharge proceedings and was given an undesirable discharge on 20 August 1970.

Army Regulation 601-210 prescribes the enlistment criteria for personnel enlisting into the Army.  The 1 May 1968 edition of this regulation, table 2-8, provides for the enlistment of both prior service and non-prior service personnel for a period of 2 years.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgements).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 635-40, paragraph 4-3a, states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  Although the applicant was treated for behavior problems, he was determined to be psychiatrically and medically fit when he was separated.  

2.  In addition, since the applicant was pending discharge for unfitness, which normally resulted in an undesirable discharge, he was precluded from being processed for a medical discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_JNS____  _EW____  _RWA___  DENY APPLICATION

                                                               John N. Slone           
						Loren G. Harrell
						Director