MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           29 July 1999       
	DOCKET NUMBER:   AR1999015113

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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:  In effect, that his general discharge be upgraded to honorable.  

APPLICANT STATES:  That his discharge should be reviewed using current standards.  

COUNSEL CONTENDS:  That the applicant received an undesirable discharged under the provisions of AR 635-360, because of his inability to adapt and his traits of character. The Army Discharge Review Board (ADRB) upgraded that discharge to general under the provisions of AR 635-212.  A review of his records show that the applicant was classified as mental defective high grade imbecile, was illiterate, with the mental age of 7, and incapable of performing military duty.  Since he lacked the mental capacity to serve in the military, it would be an injustice to classify his service as other than honorable, and under current standards an honorable discharge is warranted.  The applicant is service connected for a psychiatric condition by the VA and is considered totally disabled due to his military service.  COPY OF COUNSEL’S STATEMENT ATTACHED.

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

The applicant was inducted into the Army on 22 January 1941.  His WD AGO Form No. 24 (Service Record) contains various entries concerning his character and his efficiency rating – excellent and satisfactory, respectively on                  22 January 1941; satisfactory and satisfactory on 30 April 1941; excellent and very satisfactory on 30 June 1941; excellent and satisfactory on                          30 September 1941; excellent and satisfactory on 30 November 1941; fair and poor on 28 February 1942 and again on 31 March 1942; very good and unsatisfactory in November 1942; and good and satisfactory in January and February 1943.

A 12 November 1941 certificate from an Army psychiatrist at Fort Benning, Georgia, diagnosed the applicant as mental deficiency, moron (low), mental age about 8 years.  He stated that the applicant had no psychosis and no disqualifying physical defect.  Hospitalization was not required and he was considered mentally responsible for his acts, and could be released from military control without danger to himself or others.  He recommended that the applicant be discharged in accordance with Section VIII, AR 615-360.

On 16 May 1942 the applicant was arraigned, tried, and found guilty of two counts of AWOL, one count of disobedience of a lawful command, one count of disobedience of a lawful order, and one count of breaking restriction.

An 18 January 1944 psychometric examination indicates that the applicant revealed a mental age of 7 years, and three months (IQ 45), classifying him as a mental defective, high grade imbecile, who was also illiterate.  The examining official stated that he did not possess the mental capacity to perform efficient military service, and recommended that he be discharged under Section VIII,    AR 615-360 proceedings.  

On 9 February 1944 a board of officers convened under the provisions of Section VIII, Army Regulation 615-360, at Camp McCain, Mississippi, to determine whether or not he should be discharged from the Army.  

The applicant’s commanding officer indicated in his testimony that no one could get any work out of him, that the applicant had stated that he was sick and had heart trouble, but his records do not show this.  He put him in the stockade, but it did no good; he had a NCO over him and he took him off his rations, but nothing seemed to do any good.  He would always find the applicant sitting down and would never find him working.  He understood orders, but did not want to carry out any order.  He was doing janitor service, the lightest jobs he could give him.  The applicant told him that a Captain had said that he had a block in his heart, but he (the commanding officer) found out that officer denied having said that.  He leaves his job and was totally irresponsible.  He was not courteous and he insulted everyone.  He was intelligent enough  to perform his duties, but would not do them. 

An NCO testified along the same lines as the aforementioned officer, saying that the applicant rode sick call, left the job any time he saw fit, and did not do anything but sit down.  He was disrespectful to officers and would not work.  He did not do work on purpose and insulted people purposely.  

The applicant testified that he was badly treated, that he would try to work, that he had heart trouble, and that he wanted to get out of the Army because he was no good for any type of duty.  He stated that he did not get a fair deal, because he was made to work at times when he was sick.  He was asked what kind of work would he like to do and he stated that he can’t do any work.

Another officer testified, saying that the applicant was in his organization for nine months, that he did not get any work out of him, that he was complaining all the time, usually his heart or his big toe.  He was examined by doctors, who stated that there was nothing wrong with his heart, and his stiff toe could not be healed any more than it was.  The applicant still rode the sick book.  He was a gold brick.  He did not show lack of intelligence but would always think up some excuse for getting out of work.  He was lazy.

The board found that the applicant was inapt, that he did not possess the required degree of adaptability for the military service and that he gave evidence of traits of character other than those indicating discharge for physical or mental condition.  The board recommended that he be discharged for inaptness, lack of adaptability for the military service, and traits of character which rendered his retention in the service undesirable.  The convening authority approved the recommendation and the applicant was discharged on 8 March 1944.

On 11 September 1944 he requested from The Adjutant General that he needed a copy of his discharge, which the American Legion had forwarded for the purpose of review in connection with a public law.  And on 26 September 1944 he stated that he was returning the discharge because it had served its purpose, and he reiterated his request that reconsideration be given to the propriety of the discharge. 

On 23 November 1944 the applicant appeared before the Secretary of War’s Discharge Review Board, and testified under oath.  That board denied his request to upgrade his discharge to honorable.

On 4 March 1946 the applicant was advised that he had provided no new evidence in his second application for review of his discharge by the Secretary of War’s Discharge Review Board, and no further action would be taken in his case. 

On 8 November 1946 the Secretary of War’s Discharge Review Board notified the applicant that it had received his request for a review of their decision denying his appeal for an honorable discharge, and that since he had submitted no additional evidence, no further action would be taken on his case.

On 26 November 1946 the VA notified the applicant that his claim for service connection for defective vision and heart and neuropsychiatric conditions had been denied.

In a 15 August 1947 letter to the aforementioned discharge review board, an attorney notified that board that he had been retained by the applicant to represent him for the purpose of a review of his discharge.

On 21 December 1949 the applicant wrote a letter in which he stated that he had enclosed a copy of a few pieces of his discharge, and requested a copy of his discharge.  He stated that he was sick while in the Army, but it was not so indicated on his discharge; however, his records showed his illness.

In a 12 January 1950 letter in response to his request for information concerning his medical record, he was informed of his various and sundry medical treatments while in the Army.  That letter shows 64 treatments, some lasting over a month, from February 1941 to October 1943, for influenza, cardiac murmur, headache, nervousness, insomnia, weak heart, chronic cold, pain in back, swimming sensation in head and chest, neurocirculatory asthenia, gonorrhea, sensation of pins in fingers, pain in right side of neck, dizziness, and so forth.

On 24 May 1950 the applicant was notified that he had submitted no new evidence and no further action would be taken on his application for reconsideration of the review of his discharge.

In a 4 March 1955 letter the Military Personnel Records Center notified the applicant, now a Reverend, that his application for reconsideration of the review of his discharge had been received, that there was no new evidence, and no further action would be taken in his case.  

On 15 February 1966 he made application to this Board requesting that his honorable discharge be changed to a medical discharge.  On 18 January 1967 this Board determined that insufficient evidence had been presented to indicate probable material error or injustice and his application was denied.  

In a February 1967 letter to the applicant he was notified that his application to correct his records (on the basis of the medical question) was denied on            18 January 1967.

On 24 October 1967 the Army Discharge Review Board upgraded his discharge to general under the provisions of Army Regulation 635-212 (unsuitability).  Testifying before that board, the applicant and counsel stated that the applicant was ill and that he had a misunderstanding with his sergeant concerning his illness; and that he had pursued the correction of his record for many years because there were certain circumstances that resulted in his discharge, and he did not warrant it.  The applicant testified that he had hemorrhoids in 1942 when he was at Fort Benning, Georgia, and they bled internally, and the doctor wrote this down saying that he was unable to work, however, his sergeant told him to work or he would receive a Blue (undesirable) discharge.  He had three operations, two in 1965 and one in 1966.  He stated that he was discharged because he did not go to the firing range, because he was unable to do so [because of his hemorrhoids].  The applicant stated that he had applied for compensation from the VA for hemorrhoids, heart condition, and a nervous condition, but had yet to receive anything.  He stated that he did what they wanted him to do for two years, beginning in 1941, and had a good record; up until the time that his physical condition deteriorated.  Testimony revealed that the applicant stated that he had educated himself after leaving the service, that he was a minister, active in his religion, and could read (though not too large words).  Testimony  and his record revealed that he had three periods of AWOL, from 9-12 October 1941, from 22-23 April 1942, and from 30 June –9 July 1943, and that he was in confinement for a total of 164 days.  The applicant stated that he was sick, and they would not do anything for him, so he went home.

That record also showed that his condition had been diagnosed on                     27 September 1941 as cardiac murmur, systolic, pulmonic, functional valvular heart disease, suspect; that he complained of a headache and chest pain, and his condition was diagnosed as no disease; that on 23 April 1943 his condition was diagnosed as neurocirculatory asthenia, mild, manifested by precordial pain, dyspnea and palpitation, and also new gonorrhea, acute; and that he complained of fainting spells, and pains around the heart, and his condition on 21 July 1942 was diagnosed as no disease; that his condition on 12 August 1943 was diagnosed as neurocirculatory asthenia, mild, cause undetermined, manifested by vague precordial pain, dyspnea and palpitation.

In a 29 December 1970 decision by the VA board of Veterans Appeals, that agency concluded with resolution of reasonable doubt in the applicant’s favor, that his psychiatric condition was aggravated during wartime service.  He was granted service connection for a psychiatric condition effective 20 January 1966. His claim for service connection for organic heart disease, defective vision, left inguinal hernia, and hemorrhoids, was denied.

VA records indicate that the applicant has written various public officials over the years, to include a member of congress in 1951, J. Edgar Hoover in 1956, President Eisenhower in 1956, and President Kennedy in 1961.  A VA report indicates that it was extremely hard to represent the applicant, and he was not then, never was, and never would be acceptable to a mental diagnosis.  He had always been and would always be convinced that he should have several medical diagnoses.  A VA letter to a member of congress on 16 January 1978 indicated that the applicant was receiving compensation based on service-connected nervous condition effective on 20 January 1966; and that the applicant had filed several appeals, alleging that he should have been paid for this condition prior to that date; however, the applicant had presented no evidence to so warrant.

An FBI file indicates that the applicant had been arrested and charged for numerous offenses from 11 April 1948 to 5 January 1962, to include larceny, false pretenses, cheating and swindling, and “flim flam”, and that he had been incarcerated in the DC jail, and the state prison in Reidsville, Georgia.

In June of 1981 the applicant requested the rest of his money from the Army for an Army accident.  He stated that the VA told him the Army was responsible for this money.  He has since made numerous requests for pay and benefits.

On 28 July 1983 the VA informed him that there was nothing further that it could do in regard to his request for reconsideration of his claim for an earlier effective date of his award or benefits, which had been denied by their board.

In a 29 January 1993 letter the applicant was informed that this Board was unable to assist him in his request for an Army pension from 9 March 1944 for medical reasons, because there was no provision of law that would allow this prior to 1 October 1949.  On 10 February 1995 he was likewise informed in response to his 23 February 1993 application to this Board.

Army Regulation 615-360, then in effect, provides the policy and procedures pertaining to the discharge of enlisted men. Section VIII of that regulation provides procedures for discharge because of inaptness or undesirable habits or traits of character, and states, in effect, that a soldier who gives evidence of habits or traits of character which serve to render his retention in the service undesirable, and rehabilitation of such enlisted man is considered impossible after repeated attempts to accomplish same have failed, or is disqualified for service, physically or in character, through his own misconduct, and cannot be rehabilitated so as to render useful service before the expiration of his term of service without detriment to the morale and efficiency of his organization, will be required to appear before a board of officers to determine if he should be discharged prior to the expiration of his term of service.  That section goes on to say that a soldier found to be unfit because of undesirable habits or traits of character and subsequently discharged will be issued a War Department A.G.O. Form No. 56 (Discharge from the Army of the United States (blue)).

Army Regulation 635-212 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 an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-200 (1974 time frame) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.   Paragraph 13-5b (3) provided for the separation for unsuitability of those individuals because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-200 (1980 time period) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unsuitability.   Paragraph 13-4c provided for the separation for unsuitability of those individuals who were apathetic (lack of appropriate interest), had defective attitudes, did not have the ability to expend effort constructively.  Paragraph 13-4b provided for separation for unsuitability for those individuals who were determined to have a personality disorder.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-200, now in effect, provides for the administrative separation of enlisted soldiers.  Chapter 5 of that regulation allows for separation for the convenience of the government and states that a soldier separated for this reasons will be awarded a character of service of honorable conditions.  Paragraph 5-13 states that a soldier may be separated for a personality disorder that interferes with assignment to or performance of duty when his condition is determined to be a deeply-ingrained maladaptive pattern of behavior of long duration.  The diagnosis of personality disorder must have been established. 

Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  If the soldier has 6 or more years of total active service and has not executed a waiver, a board of officers will be convened to determine whether the soldier should be separated for unsatisfactory performance. The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A under other than honorable conditions certificate is normally appropriate for a member discharged for misconduct.

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.  The applicant could do good work in 1941, 1942, and 1943, as evidenced by the efficiency ratings given him during that period of time.  Although none of these ratings were excellent he did have some satisfactory ratings, and he did have some excellent character ratings during those years, in spite of periods of AWOL in each of those three years.  The Board notes the results of the psychiatric examinations, both in 1941 and again in 1944; nonetheless, the Board feels that the applicant was capable of working.  Testimony provided by soldiers in his unit before the 1944 board indicates that the applicant understood orders, did not show a lack of intelligence, would not do work; was disrespectful to everyone, totally irresponsible, did not do work purposely, and that he rode the sick book.  The applicant himself has stated in his testimony before the Army Discharge Review Board in 1967 that his reason for not working was because of his sickness, because of his hemorrhoids, not that he was incapable of work.  The Board also notes that the VA has denied the applicant’s request for service connected disability because of hemorrhoids.  

2.  The applicant has been classified as a moron by one doctor, and a high grade imbecile, who was also illiterate, by another.  However, it was not too long after his discharge that he began a series of petitions to have his discharge upgraded, appearing before a board of officers in 1944, writing letters in his behalf, and even obtaining the services of an attorney.  Nothing wrong with this, but it appears to this Board that the applicant got awful smart in a hurry.

3.  The evidence also shows that the applicant testified before an October 1967 Army Discharge Review Board that he had a good record prior to the deterioration of his physical condition, when in fact, he had three periods of AWOL, and had been found guilty of various infractions by a special court martial in 1942. 

4.  Standards in 1967 provided for a general or honorable discharge for unsuitability in accordance with Army Regulation 635-212.  The Army Discharge Review Board upgraded his discharge to general based on those standards as determined by that board.  Standards in 1974 and again in the 1980’s also provided for an honorable or general discharge for unsuitability.  However, today’s standards provide for no such separation.  It is the contention of this Board, that were current standards applied, the applicant would be separated either for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, or for misconduct, under chapter 14.  A separation for misconduct would normally require an under other than honorable conditions discharge; for unsatisfactory performance, an honorable or under honorable conditions as warranted by his record. 

5.   The evidence indicates that the applicant was a malingerer, was insubordinate, and disrespectful, offenses under today’s standards which would require a separation for misconduct, and a discharge under other than honorable conditions.  This Board thus endorses the action rendered by the 1944 separation board and believes that his undesirable discharge was warranted.  Nonetheless, his discharge has been upgraded to general.  Consequently, no further action is deemed appropriate.   

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
 
8.  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

__chl___  _slp____  __clg______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015113	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.