MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:                              
DOCKET NUMBER:   AC82-05835A
			   AR1999015284

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 application to correct his records by upgrading his discharge.

APPLICANT STATES:  In effect, he was and is suffering  from a mental condition which was the underlying cause of his actions that lead to his court-martial and Bad Conduct Discharge.  He indicates that this condition was not diagnosed until he was incarcerated post service but that it combined with his involvement with drugs, abuse of alcohol and his youth and immaturity to result in his misconduct. He avers that his court-martial and other disciplinary actions were isolated infractions.  He requests that the Board afford him clemency and asks that it note the awards and decoration he received and his prior Honorable Discharge.

NEW EVIDENCE OR INFORMATION:  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 19 November 1982 (COPY ATTACHED).

The applicant’s request that a mental condition impaired his ability to serve is a new issue warranting referral to the Board.

In addition to resubmitting copies of his military records and the court-martial record, the applicant submits a California arrest record and prison medical records.  The arrest report indicates that the applicant has been arrested 15 times and repeatedly incarcerated following his release from service.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

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 was not diagnosed with a mental condition until after he was incarcerated post-service and in the absence of evidence that, at the time of the commission of the offences which lead to his court-martial, he was so impaired as to be unable to tell right from wrong or to adhere to the right or that he was unable to participate in his own defense relief is not warranted.

2.  The applicant has submitted no evidence to warrant a consideration of clemency.  In fact his post service record continues to reflect that his actions on active duty were not isolated but of a pattern which continued well after his military service and the diagnosis of a mental condition.  The Board notes that the civilian authorities have continued to hold him responsible for his behavior.

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

__JNS__  ___RGH__ __RWA__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC82-05835A
AR1999015284	
SUFFIX		
RECON	 	
DATE BOARDED	19990519 	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.	178	
3.		
4.		
5.		
6.