MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             22 July 1999     
	DOCKET NUMBER:   AR1999017445

	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. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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, physical disability retirement or discharge.

APPLICANT STATES:  That he has had and now has severe mental problems because of his Army service.  He states that he jointed the Army in June of 1979, and received training at Fort Benning, Georgia as an infantryman.  Prior to his Army service he had no problems with drugs or alcohol, criminal or juvenile problems, or any other problems.  After one year in the Army he was an alcoholic, a drug addict, and had severe mental problems in Korea.  He had several episodes of facial self mutilation, along with drugs, cigarettes, and alcohol dependency, that he did not have prior to joining the Army.  At the time of his discharge, his commanding officer stated that he was not well, yet he was returned to civilian life knowing that he had severe mental problems.

The applicant submits letters from individuals, to include his mother, who provided information concerning his medical problems.

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

The applicant enlisted in the Army Reserve, in the delayed entry program (DEP) on 1 February 1979 for six years.  In the remarks section of his DD Form 1966/5 (a part of his enlistment contract), the applicant stated, “I have used pot before”, and “Drinking with buddies police told us to empty beer no ticket”.  He stated that the Army’s commitment to him in the DEP is contingent upon his entering and completing his senior year of high school.  The applicant enlisted for training as an infantryman with follow on assignment to Korea.  He was discharged from the DEP and enlisted in the Regular Army for three years on 12 June 1979.  

The applicant completed training as an infantryman at Fort Benning and in September 1979 was assigned to an infantry battalion in Korea. 

An 11 March 1980 medical report indicates that the applicant was referred for anxiety and stress, and that the applicant had been involved in a motor vehicle accident (prior to his Army service), that left residual damage to the applicant’s father and brother, and that the applicant had some guilt and a problem with acceptance.  The examining official stated that the applicant was experiencing acute stress reaction, that he had no psychotic or behavioral problems, and that the applicant was responsive to and could benefit from counseling. 

On 7 July 1980 he received nonjudicial punishment under Article 15, UCMJ, for being drunk and disorderly.  He completed his tour and returned to the United States, and in October 1980 was assigned to an infantry unit at Fort Campbell, Kentucky.  On 1 December 1980 he was promoted to pay grade E-4.

A 20 February 1981 CID report indicates that an undercover CID agent purchased 15 tablets of methaqualone from the applicant for $45.00, and that the applicant had asked the agent if he would like to buy a $10.00 bag of marijuana.  The applicant indicated to the agent that he could come back at any time and purchase more drugs.  The agent notified officials of the transaction.

A pretrial confinement checklist shows that the applicant had sold 15 hits of a controlled substance, quaalude, a dangerous habit forming drug, to an undercover agent on 20 February 1981.  He told the agent that he was scared and doesn’t want an Article 15 or court-martial, that he doesn’t like the Army, and just wants to get away.

On 2 March 1981 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he understood the charges against him  that authorize the imposition of a bad conduct or dishonorable discharge and that he was guilty of the charges against him.  He stated that under no circumstances did he desire further rehabilitation, and that he had no desire to perform further military service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He declined to submit a statement in his own behalf.

A 5 March 1981 report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish between right and wrong and to adhere to the right, that he had the mental capacity to participate in board proceedings, and that he met the medical standards for retention in the Army.

On 10 March 1981 the separation authority approved the applicant’s request and directed that he be discharged under other than honorable conditions.

The applicant was discharged at Fort Campbell on 12 March 1981.  He had        1 year, 9 months, and 1 day of service.

On 25 October 1988, the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s request to upgrade his discharge. 

In the processing of this case, an advisory opinion (COPY ATTACHED) was received from the medical advisor to the Army Review Boards Agency.  That official stated that a review of his medical records did not show any medical or psychiatric diagnosis that would preclude his ability to perform his duties.  That official noted the 11 March 1980 medical entry that showed an assessment of acute stress reaction.  He also stated that his discharge proceedings precluded the applicant from entering the disability evaluation system.  He recommended that the applicant’s request be denied.

On 30 March 1980 the applicant was furnished a copy of the advisory opinion for his information and possible rebuttal.  He responded by requesting specifics about acute stress reaction in order to help him with his disability claim with the social security office.  He also stated that he had been diagnosed with the “A” criteria for post traumatic stress disorder. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to
perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40, paragraph 3-2b (2), as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation,
rendered the member unfit.

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  

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

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The Board has considered the applicant’s contentions to include the documents which he has submitted with his request.  Nonetheless, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  And he could not have been processed for a physical disability had he a disabling condition, because of the nature of his offenses which led to his administrative separation.  Nevertheless, the applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  

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

___cmf__  __tnk___  ___rjw__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017445	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990722	
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. 108.00		
2. 110.00		
3.		
4.		
5.		
6.