MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           9 February 2000 
DOCKET NUMBER:   AR1999025265

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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 undesirable discharge to honorable.

APPLICANT STATES:  In effect, that as a result of deprived and abused childhood he was suffering from a condition which diminished his ability to serve.

COUNSEL CONTENDS:  In effect, that the psychiatric examination afforded the applicant, at the time of his discharge, showed that he was suffering from a character and behavior disorder to such a significant degree as to render him unsuitable for continued service.  The counsel contends that it would have been more appropriate to discharge the applicant for unsuitability rather than punish him for acts over which he had little or no control.

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 10 November 1998 (COPY ATTACHED).

The applicant, through counsel, submits the request for consideration under diminished capacity as a result of the applicant’s personality disorder.  This constitutes new argument that requires Board review.  No additional documentation in support of this contention was submitted.

The applicant’s record shows that he was afforded a neuropsychiatric examination on 6 March 1972, in concert with the preferring of charges for his courts-martial.  This examination described the applicant as suffering from a basic character and behavioral disorder arising from an emotionally and physically deprived childhood.  The condition was considered to have existed prior to service without aggravation.  He was found to not meet the requirements for physical disability processing.  It was determined that he was competent, mentally responsible, able to tell right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.

Army Regulation 40-501, chapter 3, provides that personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with effective performance of duty in association with these conditions will be dealt with through appropriate administrative channels.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (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.  Prior counseling with a view to correcting deficiencies is mandatory.  A diagnosis by a psychiatrist is required.  Separation under this paragraph may not be used in lieu of disciplinary action solely to spare a soldier who has committed serious acts of misconduct.  An honorable discharge is issued unless a entry-level separation is required.  An individual who has been convicted by general court martial or has more than one special court martial conviction during the current period of service may be issued a general discharge under honorable conditions.

Army Regulation 635-200, chapter 10 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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 discharged for a personality disorder but for disciplinary infractions at the discretion of the discharge authority.  The applicant’s service record clearly documents disciplinary problems throughout his entire period of service. 

2.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the deprived childhood issue does nothing to demonstrate an error or an injustice in the discharge.

3.  Contrary to the Counsel’s contention, the applicant was found to be responsible for his actions and the psychiatrist recommended administrative separation.  The decision to separate him for unfitness due to misconduct was a legitimate and appropriate exercise of command discretion. 

4.  This individual, accused of several offenses, made what was tantamount to a plea bargain.  He has since contended and continues to contend that he was treated unfairly for various and sundry reasons.  His case is analogous to that of other individuals who cop pleas rather than risk more stringent sanctions in that he voluntarily deprived himself on any and all defenses.  That notwithstanding, his arguments have been examined by the Board. 

5.  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.

6.  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.

7.  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.

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

___rvo__  ___cjs___  ___dsj___  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025265	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972-0727	
DISCHARGE AUTHORITY	AR 635-200 cpt 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.	110.02	
3.	A93.23	
4.		
5.		
6.