MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 January 2000                  
	DOCKET NUMBER:  AR1999025469

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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:  That his undesirable discharge (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, that he believes he has a number of medical problems that have not been taken into consideration.  In support of his request he submits medical documents that he obtained between January and February 1994, from Pacific Gateway Hospital, Portland, Oregon.  He also submits a comprehensive psychological evaluation he received from a clinical psychologist, in Klamath Falls, Oregon.  The medical documents show that he suffers from depression, substance abuse, and multiple medical problems with complicating psychiatric factors.

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

That on 26 July 1967, he was inducted into the Armed Forces of the United States for a period of 2 years.  He was assigned to Fort Lewis, Washington, for basic combat training.  On 17 September 1967, he departed his unit absent without leave (AWOL).

On 24 October 1967, the applicant was convicted by a special court-martial of being AWOL from 17 September-8 October 1967.  He was sentenced to forfeiture of pay and confinement at hard labor for 2 months.

On 22 January 1968, the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice, for being AWOL from 3-9 January 1968.  His punishment included forfeiture of pay.

On 5 April 1968, the applicant was convicted by a special court-martial of being AWOL from 26 January-17 March 1968.  He was sentenced to forfeiture of pay and confinement at hard labor for 6 months.  

On 23 August 1968, he was convicted by a special court-martial of being AWOL from 19 April-31 July 1968.  His exact sentence is not a matter of record.  However, he was confined at Fort Riley, Kansas.

On 1 November 1968, the applicant departed the US Army Personnel Control Facility, Fort Riley, Kansas in a casual leave status, enroute to Fort Ord, California, to attend advanced individual training in military occupational specialty (MOS) 94A (Food Service Apprentice).  On 25 November 1968, he went into AWOL status.  He failed to report and he never completed the course.  

On 6 February 1969, he was returned to military control at the Special Processing Detachment, Fort Lewis, Washington. 

On 17 February 1969, the applicant underwent a psychiatric evaluation by professionally trained personnel.  He was diagnosed to have a “character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military.  He uses poor judgement.”  Further, he was diagnosed to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board and other legal proceedings. 

On 19 March 1969, he was convicted by a special court-martial of being AWOL from 25 November 1968-6 February 1969.

On 14 April 1969, the commander notified the applicant of his intent to recommend that a board of officers be convened under the provisions of Army Regulation 635-212, for the purpose of determining whether he should be discharged for unfitness before the expiration of his term of service.

On 15 April 1969, the applicant was advised by legal counsel of the basis for the contemplated separation action and its effects, and the rights available to him.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD.  He waived further representation by legal counsel and he waived consideration of his case, or a personal appearance before a board of officers.  He also declined to submit a statement in his own behalf.

On 25 April 1969, competent authority waived further counseling and rehabilitation, approved the discharge and directed the issuance of a UD, under the provisions of Army Regulation 635-212, by reason of unfitness, pattern of shirking.

On 29 April 1969, the applicant received a physical examination with a psychiatric evaluation.  He was diagnosed to have an inadequate personality and he was medically cleared for separation.

On 2 May 1969, the applicant was discharged.  He had completed 
7 months and 16 days of active military service and he had 399 days lost time due to being AWOL and in confinement.

On 26 February 1980, the Army Discharge Review Board (ADRB) reviewed the applicant’s records and denied his request for an upgrade of his discharge.  On 25 October 1982, after a personal appearance before the ADRB, the applicant was again denied an upgrade of his discharge.

Army Regulation 635-212, in effect at the time set forth the basic authority for the elimination of enlisted personnel who were found to be unfit or unsuitable for military service.  The pertinent regulation further provided, in pertinent part, 
that service members discharged for unfitness would be furnished a UD, unless circumstances warranted a general discharge or a HD.

Army Regulation 635-40, paragraph 2-2b, 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.

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.  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.

2.  The applicant was properly separated in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized his rights.

3.  There is no evidence that shows the applicant had a medical condition that was either incurred or aggravated by active military service.  The applicant has provided no evidence to the contrary.

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

5.  The Board noted the applicant’s current medical problems, but they do not provide a basis for upgrade of his discharge.  He should work with the Department of Veterans Affairs to determine the availability of medical treatment.

6.  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____  CLG____  JPI______  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025469	
SUFFIX		
RECON		
DATE BOARDED	20000119	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19691229	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.		

APPLICANT REQUESTS:  The applicant requests that his undesirable discharge (UD) be upgraded to a general discharge (GD).

APPLICANT STATES:  In effect that the characterization of his discharge is improper because he was mentally disabled at the time of his discharge.

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

On 17 August 1966, he enlisted in the Regular Army for 3 years and training in military occupational specialty 11B (Light Weapons Infantryman). 

He was found guilty by special courts-martial on four different occasions during his period of service.  On 17 February 1967, he was found guilty of stealing United States currency of a value of approximately $55.00, the property of another soldier.  On 5 August 1968, he was found guilty of being AWOL from 
28 August 1967 – 1 March 1968 and from 19 March – 11 July 1968.  On 
14 January 1969, he was found guilty of being AWOL from 25 December
1968 – 8 January 1969.  On 29 March 1969, he was found guilty of being AWOL from 10 February – 19 March 1969.  His sentences included reduction from pay grade E-2 to pay grade E-1 (twice); confinement at hard labor for 6 months (three times) once suspended; and forfeiture of pay (three times).  The
14 January 1969, conviction was set aside because the convening authority failed to order the sentence into execution.

On 7 May 1969, the applicant underwent a psychiatric evaluation by professionally trained personnel.  Even though, he was diagnosed to have an antisocial personality disorder that was chronic to moderate, he was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  Further, it was determined that he had the mental capacity to understand and participate in board proceedings.

On 12 May 1969, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. 

On 12 May 1969, the applicant was advised by legal counsel of the basis for the contemplated action and its effects, and the rights available to him.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD.  He waived further representation by legal counsel, and he waived consideration of his case, or a personal appearance before a board of officers.  He also declined to submit a statement in his own behalf.
On 20 May 1969, competent authority approved the recommendation and directed the issuance of a UD, under the provisions of Army Regulation 635-212, for unfitness, by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities. 

On 29 May 1969, the applicant was discharged.  He had completed 1 year,
4 months and 16 days of active military service and he had a total of 515 days lost time due to being in confinement and AWOL.

In connection with his application, the Medical Advisor to this Board, opined (COPTY ATTACHED), in essence, that the applicant was diagnosed by a psychiatrist on 7 May 1969, and no disqualifying mental defects sufficient to warrant disposition through medical channels were found.  Further evaluation of his medical records revealed no disqualifying or unfitting conditions.

The above advisory opinion was referred to the applicant for comment or rebuttal, but he failed to respond.

Evidence of record indicates the Army Discharge Review Board denied the applicant an upgrade of his discharge on 6 November 1981. 

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD was normally considered appropriate for such discharges.

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.  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.

2.  A professionally trained psychiatrist determined that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right, and he has submitted no medical evidence to the contrary.  His performance and conduct clearly departed from acceptable Army standards and, in fact, he knowing violated the Army’s policies when he continually went AWOL.

3.  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.

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

5.  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

KJN_____  FNE_____  JPI_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC096-10924/AR1999015914	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990121	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19690529	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	frequent incidents of a discreditable nature with civil or military authorities	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	 He was mentally disable at the time of his discharge.	
2.		
3.		
4.		
5.		
6.