MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  2 December 1999                              
	DOCKET NUMBER:   AR1999015452

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. James P. Steuve		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 request for an upgrade of his undesirable discharge (UD) to a fully honorable discharge (HD).

APPLICANT STATES:  That his command erroneously diagnosed that he suffered from an anti-social personality.  He believes that an error in diagnosis is the proximate cause for his discharge from the Army.  He should have received a discharge under the provisions of Army Regulation 635-209 by reason of unsuitability.  In support of his request the applicant referenced Kinnaman v. Principi decided by the U.S. Court of Veteran’s Appeals.  Further, he states that he has been elected to a political office, he is a community activist, he is an employed professional, he has reared six children and he has earned a bachelor’s degree.  He has had neither criminal nor legal problems since leaving the military.  He also submits a personal statement written in his own behalf, a an extracted portion of Army Regulation 635-208, a portion of Army Regulation 635-209, a portion of the Diagnostic and Statistical Manual of Mental Disorders, section 301.7 Antisocial Personality Disorder, a document dated 7 March 
1962 (used in the separation process), and a psychiatric examination certificate dated 13 December 1961 in support of his request.

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 16 July 1997 (COPY ATTACHED).

The attached Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration (MOC) shows that prior to the enlistment under review the applicant had two honorable periods of service.  He served honorably in the Arizona Army National Guard from 21 October 1954-17 June 1956.  He also served honorably in the Regular Army (RA) from 18 June 1956-29 May 1959. 

On 13 April 1961, the applicant reenlisted in the RA.  In October 1961, he was reduced in rank and moved to a new unit so that he could have a fresh start after being involved in a fight.  Further, the record reveals that he was absent from his unit without leave (AWOL) from 1-3 November 1961 and again from 
14-18 November 1961.  He was convicted by trials by courts-martial for both AWOLS.  He was sentenced to forfeiture of pay, and restriction for the first AWOL.  He was reduced to pay grade E-1, and confined to hard labor for 
5 months after the second AWOL.  He was counseled numerous times about his conduct and performance.  

On 1 December 1961, he stated that all he wanted was to be discharged and that he wanted to go and live in Mexico.

On 13 December 1961, a psychiatric evaluation found that the applicant had an antisocial personality disorder manifested by excessive drinking, frequent infractions for misconduct, and shirking assigned responsibilities.  He was hostile and bitter towards the Army and he wanted to be released.  He was mentally responsible and understood right from wrong and he had the capacity to adhere to the right.  The recommendation was that he be separated from the military under the provisions of Army Regulation 635-208, by reason of unfitness.  

On 13 February 1962, a further medical examination indicated that applicant had an antisocial personality that existed prior to service.  His condition was diagnosed as not to be disabling and he had no disqualifying physical or mental defects that warranted separation through medical channels.  Additionally, a 
15 February 1962, certificate from a doctor confirms that the applicant was free from any mental or physical defects that would warrant a discharge through medical channels.

The applicant’s DD Form 214 is not a matter of record; however, the Department of Veterans Affairs records indicate that he was discharged on 23 March 
1962 with a UD.

Army Regulation 635-208, in effect at the time set forth the basic authority for the elimination of enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be best served by eliminating the individual concerned:  when reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amendable to rehabilitation measures; if, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, or an established pattern of shirking may also be the cause of unfitness.  A UD was normally considered appropriate.

Army Regulation 635-209, in effect at the time set forth the basic policy, and guidance for the prompt elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unsuitable for further service by reason of a character and behavior disorder. 

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 overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
2.  The records reveal that the applicant’s commander recommended that he be separated under the provisions of Army Regulation 635-208 after, he had engaged in a litany of misconduct and rehabilitation was deemed unlikely to succeed.  He was not discharged as a result of his mental status evaluation alone. 

3.  Army Regulation 635-209, in effect at the time set forth the basic policy, and guidance for the prompt elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unsuitable for further service by reason of a character and behavior disorder.  Under this regulation and paragraph the appropriate authority could approve an honorable or a general discharge.

4.	Further, the Board determined that even if the antisocial personality 
diagnosis was in error, it would not have affected the characterization of the applicant’s service in light of his lengthy record of misconduct.  

5.  Professionally trained personnel determined that the applicant was mentally responsible and able to understood right from wrong and that he had the capacity to adhere to the right.

6.  Applicant’s citation of Kinnaman v. Principi,  4 Vet. App. 20 (1993), decided by the U.S. Court of Veteran’s Appeals, is misapplied in that case.  The U.S. Court of Veteran’s Appeals overturned prior decisions that the veteran’s injury was not service connected and directed an award of service connection.  In this case, the issue of whether the applicant’s anti-social personality is or is not service connected had no bearing on the Army’s decision to discharge him and has no bearing on the Board’s review of his decision.  This is especially true since it has been a long standing Army policy that personality disorders do not qualify soldiers for medical disability benefits or disability separation.

7.  The Board congratulates the applicant on his achievements since departing the Army.  However, the Board does not grant relief based solely on post service achievements.

8.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

9.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

10.  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

SVW____  VBC____  JPS_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015452	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR635-208  	
DISCHARGE REASON	A67.50	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	144.6750	
2.		
3.		
4.		
5.		
6.