MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            27 April 1999     
	DOCKET NUMBER:   AR1999021845

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		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, disability retirement.

APPLICANT STATES:  He was not given a separation physical or psychiatric evaluation in conjunction with his 1981 separation from the Army and that as such his schizophrenia was not discovered.  He notes that since his separation from the military he has been diagnosed as schizophrenic and as such should have been medically retired.

COUNSEL CONTENDS:  That a January 1981 psychiatric evaluation concluded the applicant was “qualified for a Chapter 13 discharge and recommended” the applicant be separated “due to a personality disorder….”  Counsel notes that in view of that evaluation the applicant “should have received a physical disability separation under Chapter 13.”  Counsel states that while the applicant does not deny his misconduct he believes it would not have occurred had his mental condition not “deteriorated to schizophrenia.”  He indicates that the applicant’s “schizophrenia occurred or was aggravated during his military service…[that] he was hyperactive and given Ritalin in his early youth [and that] his family condition certainly predisposed him to schizophrenia.”

Counsel maintains the applicant signed a statement indicating he had a separation physical examination in June 1981 only because his signature was required to “facilitate his release from military service.”  Counsel states that “unfortunately” the applicant’s “condition was not recognized and treated while in the military” and that he believes “in this case applicant should be given a disability retirement.”

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

He entered active duty on 7 August 1979 at the age of 18 with 10 years of formal education.  He successfully completed basic but while attending advanced individual training was briefly confined by civilian authorities.  (Note:  Information concerning the reason for the civil confinement is not in available records.)

Upon his return to military control he completed training as a cook and in February 1980 was assigned to Germany.  While in Germany the applicant was punished several times under Article 15 of the UCMJ for failing to go to his place of duty, disrespect and being drunk on duty.  In the fall of 1980 he was convicted by special court-martial for AWOL, breaking restriction, disrespect and disobeying an order.

His records indicate that between November 1979 and November 1980 he accumulated more than 100 days of lost time (AWOL and confinement).

In December 1980 the applicant underwent a psychiatric evaluation which noted the applicant had a history of hyperactivity but did not appear to be suffering from 
a personality disorder which would serve as a basis for an administrative separation under the provisions of Army Regulation 635-200, Chapter 13.

A 20 January 1981 report compiled by the Community Mental Health Activity psychiatrist at Fort Riley, Kansas noted the applicant had been evaluated on several occasions and he concluded the applicant’s behavior was “indicative of a passive aggressive personality disorder” and recommended he be separated under the provision of Chapter 13, Army Regulation 635-200 for unsuitability “due to a personality disorder, chronic, severe.”

On 25 January 1981, while assigned to the Retraining Brigade at Fort Riley, the applicant again departed AWOL.  He was dropped from the rolls of the Army on 23 February 1981 and on 7 April 1981 turned himself in to the military authorities in San Francisco, California.  He was issued a transportation ticket and instructed to report back to Fort Riley not later than 15 April 1981.  He did not report to Fort Riley as directed and on 16 April 1981 was returned to an AWOL status.  On 
23 April 1981 the applicant was apprehended by civilian authorities and returned to military control.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

He authenticated a statement on 15 June 1981 indicating he had undergone a separation physical examination on 12 June 1981 and noted there had been no changes in his medical condition since that examination.  (Note:  Although the applicant provided several extracts of medical documents with his application his military personnel file contained no medical documents.)

The applicant’s request was approved and on 15 June 1981 he was discharged under other than honorable conditions.  At the time of his separation he had 
1 year, 3 months, and 22 days of creditable service and nearly 200 days of lost time.

In 1982, according to documents provided by the applicant, he was admitted to the Presbyterian Hospital of the Pacific Medical Center in San Francisco.  His final diagnosis upon discharge was “brief reactive psychosis” and “probably mixed personality disorder.”

By June 1993 the applicant was diagnosed as “chronic paranoid schizophrenia” which was being treated with medication.
In 1997 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge to honorable.

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.

Chapter 13 of Army Regulation 635-200, in effect at the time, provided for the administrative separation of soldiers for personality disorders (not amounting to a disability under Army Regulation 635-40), a deeply ingrained maladaptive pattern of behavior, which interferes with the individual's ability to perform.  The regulation specifically noted that “from an Army medical viewpoint, every member who is correctly diagnosed as having a personality disorder is capable of controlling his actions.”  The guidance also noted that commanders should not take action to separate an individual for unsuitability in lieu of disciplinary action solely to spare a member who may have committed serious acts of misconduct from the harsher penalties which may be imposed under the Uniform Code of Military Justice.  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 40-501, which outlines the standards of medical fitness for military personnel, states, in effect, that personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.

Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

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 and counsel’s contention that he (the applicant) should be medically retired “due to a personality disorder” is without foundation.  As noted in Army Regulation 40-501 although a personality disorder may render an individual administratively unfit it is not a basis for disability processing.

2.  Although an evaluating mental health official may have recommended that the applicant be administratively separated for unsuitability due to a personality disorder, there is no evidence that separation proceedings under the provision of Army Regulation 635-200, Chapter 13 were ever initiated.  Rather, the applicant departed AWOL within 5 days of the health official’s recommendation.

3.  When the applicant returned to military control in April 1981 court-martial charges were preferred.  It would have been inappropriate, at that point, to separate him for unsuitability because doing so would have spared him from the harsher penalties, which could have been imposed via the court-martial or UCMJ action.  Additionally, there is no evidence in available records to indicate that the applicant was not responsible for his action at the time of his AWOL or that his personality disorder prevented him from differentiating between right and wrong.

4.  The fact that the applicant may have been diagnosed as suffering from chronic paranoid schizophrenia more than 10 years after his administrative separation from the military is not evidence that the separation was in error nor serve as a basis for disability retirement.  The Board notes that in 1982 he was diagnosed with a brief reactive psychosis and “probably mixed personality disorder” but not schizophrenia.

5.  While the applicant maintains he was not afforded the opportunity to have a separation physical examination, the fact of the matter is his military personnel record contains a statement, which he authenticated, indicating otherwise.

6.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.
9.  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___  __rvo___  __clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021845	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990427	
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.