MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            30 June 1999                 
	DOCKET NUMBER:	AC90-06730B
		AR1999015105

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		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:  Reconsideration of his previous application to upgrade his discharge.

APPLICANT STATES:  In effect, he had medical conditions that interfered with his ability to serve.  He asks that the Board again consider his previously submitted good post service character references to afford him relief so that he can receive medical care. 

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  The applicant’s previous request was administratively closed.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 15 August 1990 (COPY ATTACHED). 

The applicant’s request is very similar to that of his prior applications, however, the request for review under the issue of mitigating factors was not specifically addressed in the original decision, therefore, it is appropriate to refer this case to the Board for review.  The applicant requests that the Board again consider the statements submitted in concert with his prior review.  Specifically he forwards statements from Boubin Tire & Muffler shop, First National Bank and Oelwein State Bank, which all attest to the prompt payments and courteous nature.  Further, it appears that the applicant might be inferring that he should have been medically released, therefore the Board will address this issue as well.

The applicant’s records show that he entered the Reserves on 2 October 1952 and was ordered to active duty 12 January 1953.  During his period service he was AWOL on 8 occasions, 191 days, and had 4 periods of confinement, 238 days, for a total lost time of 429 days.  He is credited with only one month and 9 days of creditable service.

His enlistment physical shows he was suffering from symptomatic Grade II pes plaus. During his period of service he was operated on for residuals of a gun shot wound to the right chest that existed prior to service (EPTS), his symptomatic bilateral flat feet (EPTS), Achilles tenosynovitis (LOD), he had an eye examination for his myopia (EPTS), and a minor eye infection.  He had been given a temporary L-3 profile of on two occasions for his foot and ankle problems, with restrictions of no marching, prolonged standing or physical training and a permanent E-3 profile with restrictions of no combat duty or military driving due to his vision.  

In concert with his discharge action he was afforded a mental health evaluation that diagnosed him as having an aggressive personality, severe, manifested by diffuse life-long patterns of marked rebellious, negativistic, impulsive, erratic behavior, intellectual dullness, emotional instability, nomadism and egocentricity.  He was found to have borderline intellectual capacities that precluded any adjustment to military life.  He was able to distinguish right from wrong and to adhere to the right.  It was determined that this condition was EPTS and had not been aggravated by service.  The psychiatrist strongly recommended an expeditious separation for undesirability under AR615-368.

With additional charges pending for his eighth AWOL, the applicant waived his right to a board of officers and he was discharged under Section II AR615-366 (AWOL, trial waived).

Army Regulation 615-366, in effect at that time, set forth the policy and procedures for separation of enlisted personnel for misconduct including aggravated and for desertion and physical unfitness, not a disability.  Section II of that regulation authorized discharge of individuals who had been charged with AWOL or desertion and were physically unfit for military service.  An undesirable discharge was considered appropriate.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, habitual shirking, and repeated venereal infections.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.

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

1.  While the Board is glad to hear that the applicant has overcome the negative aspects of his discharge, he has not submitted evidence of post service conduct of such a meritorious nature as to outweigh the repeated periods of AWOL and extremely limited creditable service as to warrant relief.

2.  In the absence of evidence that, at the time of his AWOL, he was so impaired as to be unable to tell right from wrong or to adhere to the right, his medical and psychological conditions do not mitigate the AWOL and his service was appropriately characterized.

3. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__GDP__  __AAO__  ___JPI___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC90-06730B
AR1999015105	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990630	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19540424	
DISCHARGE AUTHORITY	AR615-366 	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES        1.	A03.07	
2.	A63.01	
3.	A64.00 	
4.	A70.00	
5.	A71.00	
6.