MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 April 2000                   
	DOCKET NUMBER:   AR1999025920

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley 		Chairperson	
	Ms. Karol A. Kennedy		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:  Physical disability retirement or discharge, and that his discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  That he was diagnosed with schizophrenia in 1967.  He went AWOL because of his mental condition, which was aggravated while on active duty.

COUNSEL CONTENDS:  Counsel supports the applicant’s request, and states that the applicant’s discharge was unjust in that he clearly suffered from a psychiatric disorder prior to his entry on active duty.  He did report this information on his induction examination, but that information was ignored.  Counsel also stated that the applicant had provided medical evidence showing that he suffered from schizophrenia prior to and subsequent to his active duty.  Thus, it would be difficult to state that his condition did not affect his ability and that he was competent at the time of his period of AWOL.  Although misconduct would override a medical disability, it does not appear that the applicant was competent, and consideration should have been given to a medical retirement. (COPY OF COUNSEL’S STATEMENT IS ATTACHED).

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his case on 2 February 1983, in which he requested that his under other than honorable conditions discharge be upgraded to honorable (COPY ATTACHED).  

The aforementioned Board denied his request, as did the Army Discharge Review Board on 19 April 1982.  The following evidence and information was available to both boards.   

A 7 September 1967 evaluation by a doctor at the Public Health Service hospital in New Orleans diagnosed the applicant’s condition as schizophrenic reaction, chronic undifferentiated type.  He was discharged from the hospital as not fit for duty.

A 10 February 1969 evaluation by a staff psychiatrist at the Public Health Service hospital in New Orleans diagnosed the applicant’s condition as schizophrenia, chronic, undifferentiated type.

Evidence considered by the ADRB (and also available to this Board on              19 April 1982), during which the applicant made a personal appearance, shows that the applicant was inducted into the Army on 9 April 1970.  His record of induction (DD Form 47) shows a physical profile serial of 1 1 1 1 1 1.  That record also indicates that the applicant indicated that he received psychiatric treatment.  The 20 October 1969 pre-induction report of medical examination shows that the applicant was qualified for induction with a physical profile serial of 1 1 1 1 1 1.  That report indicated that the applicant had denied any current psychiatric disorder or any problem in the past year.  In the report of medical history the applicant provided for the examination, the applicant stated that he was in good health, that he did not have or had not had depression or excessive worry, or nervous trouble of any sort.  However, he did say that he made a trip to India on board ship, and in July 1968, had to be flown back to New York City, and was hospitalized for one month because of nervousness.    

The applicant was assigned to Fort Polk, Louisiana, completed basic training, and in June was assigned to Fort Gordon, Georgia for advanced training.  On   26 July 1970 the applicant went AWOL.  Three years later, on 8 June 1973, he returned to military control at Brooklyn, New York.

A 19 June 1973 report of medical examination shows that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he stated that he was in good health.  He indicated that he had had depression or excessive worry, and nervous trouble, and that he had been hospitalized in a public health hospital on Staten Island.  That report indicated that he had an emotional problem when he was a civilian. 

On 28 June 1973 the applicant consulted with counsel, and 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 found if very difficult to adjust in the Army, that his rehabilitation potential was very poor, that it did not matter to him what type of discharge that he received, and that his folks needed him at home.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

On 19 July 1973 the applicant’s sister, in a letter to the commander of the Army personnel control facility at Fort Dix, requested that her brother receive a correct discharge.  She stated that her brother had suffered from epilepsy as a child, was a nervous and tense child, and unable to attend school.  After he immigrated to the United States, he joined the merchant marines and had a nervous breakdown in 1966 and was hospitalized in New Orleans for one to two months.  After release from the hospital he returned to duty, made a trip to India, had another nervous breakdown and hospitalized on Staten Island.  After his release from the hospital, and after a vacation, he continued working with the merchant marines until he was drafted in 1970.  He became very nervous in the Army and went AWOL, returning to Honduras.  The American consulate in Honduras stated that he should return to the United States, but her brother was afraid and he put off his return.  He is now agreeing to any type of discharge in order to relieve his tension.  She requests that her appeal on behalf of her brother be taken into consideration.

On 29 July 1973 the separation authority approved the applicant’s request and directed that he be furnished an Undesirable Discharge Certificate.  He was discharged at Fort Dix, New Jersey on 27 August 1973.  He had 6 months and   6 days of service and 1048 days of lost time.

An evaluation completed by a psychiatrist at the East Jefferson Mental Health Clinic in Metairie, Louisiana, on 18 November 1980 stated that the applicant had been psychotic in the past with a nervous breakdown in the late sixties.  His condition was diagnosed as acute chronic paranoid schizophrenia.

On 16 September 1981 the Social Security Administration notified the applicant’s sister that the applicant had met the medical requirements for disability benefits.

A 2 October 1981 evaluation at a clinic in New Orleans diagnosed the applicant’s condition as schizophrenia.  

A 21 May 1982 statement from a doctor in Honduras indicates that the applicant had been treated for a nervous condition within a year after his discharge, and his symptoms included hallucination, paranoia, depression, amnesia, and hysteria.  He was diagnosed as schizophrenic.

NEW EVIDENCE OR INFORMATION:

A 22 August 1968 clinical record from the Public Health Service hospital at Staten Island, New York, shows that applicant had been admitted to the hospital on 16 July 1968, and that his medical condition was diagnosed as schizophrenia, catatonic type, withdrawn.  He was discharged from the hospital as psychiatrically not fit for duty on 9 August 1968.

A June 1998 Johnson County MHMR psychiatric evaluation indicates the applicant’s condition as schizophrenia, paranoid.  An 18 September 1998 evaluation from a psychiatrist of the Johnson, Ellis, Navarro MHRM Services in Cleburne, Texas, diagnosed the applicant’s condition as schizophrenia. 

In a 28 March 1999 letter, the applicant’s sister recounted the applicant’s past history, his childhood, his service in the merchant marines to include his psychiatric treatment and hospitalization, and his military service.  She described his paranoia after his discharge from the Army, to include the fact that he was treated in a sanitarium in Wild Wood, Georgia in 1978.  She said that the applicant had accepted an undesirable discharge because a conviction by a court-martial would result in a firing squad.  She stated that since she has had power of attorney she has attempted to have his discharge reviewed, but a request for upgrade was denied.  She has now found more medical records with new information.  She feels that they are being discriminated against.  She stated that her brother had been hospitalized at least one time per year for the past     28 years, and that he could work prior to his military service, and since that service he had become totally disabled.  He should have a medical discharge because he went AWOL because he was sick.  Her brother was an expert in hiding his mental condition, consistent with a person with chronic paranoia.  She stated that both her older brother and son served honorably in the Army.  She recently spoke to a VA official who advised her to apply for an honorable or medical discharge for her brother; however, she was unsure whether her brother would get a legitimate medical discharge which would entitle him to benefits.  

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
 
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

That regulation states in pertinent part 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 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, it is concluded:

1.  The applicant’s voluntary request for separation 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 character of his discharge is commensurate with the applicant's overall record of military service.

2.  The Board notes that the applicant’s medical condition had been diagnosed as schizophrenia, before he was inducted into the Army, and after his discharge. The applicant himself had indicated, as shown on his induction document that he had received psychiatric treatment.  He stated in the report of medical history that he furnished for the pre-induction medical examination that he was in good health, that he did not have or had not had depression or excessive worry, or nervous trouble of any sort, but did say that he was hospitalized in 1968 because of nervousness.  He was physically fit for induction.  By the same token,
his medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination in 1973, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  The applicant himself stated that he was in good health.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  Furthermore, 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, because of the nature of his discharge proceedings, he could not be referred for disability processing had he been considered unfit for service.  Therefore, there is no basis for physical disability retirement or separation. 

4.  The Board has taken note of the applicant’s medical condition.  However, there is no evidence, nor has the applicant provided any, that his condition was caused by or aggravated by his military service.  He was AWOL for almost three years.  His undesirable discharge was appropriate.  The applicant has provided no good reason to upgrade this discharge.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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:

___sk___  ___kak__  __clg____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

The Board recommended only that the applicant’s records be corrected to show that he received a discharge under honorable conditions, but did not grant his request for physical disability retirement or discharge, and did not grant his request that his discharge be upgraded to honorable.

INDEX

CASE ID	AR1999025920	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000426	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.