MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           4 May 2000                  
DOCKET NUMBER:   AR1999028907

	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. Carl W. S. Chun		Director	
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		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 previous application to correct his records by upgrading his undesirable discharge.

APPLICANT STATES:  In effect, that he had a mental condition when he left the Army and he is still suffering from the same mental condition and needs therapy.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 14 June 1995.  (COPY ATTACHED)

The applicant’s contention that mental illness caused his misconduct constitutes new argument.  He submits two psychiatric evaluations that are dated May and July 1999 as evidence of his condition.  These Spanish language documents state that he was first seen in one facility in May 1984 and in the other in 1989.  The current diagnosis is chronic schizophrenia.  There is no indication of an original diagnosis.  He also submits a December 1995 letter from the VA in Puerto Rico concerning the scheduling of his benefits hearing.

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 635-40, paragraph 4-1, provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority that made the decision.

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 the absence of evidence that, at the time of the discharge or of behavior that led to the discharge, the applicant was suffering from a mental or emotional defect so severe 

that he could not tell right from wrong and adhere to the right, the contention of diminished capacity does not demonstrate an error or an injustice in the discharge.

2.  The applicant was being processed for separation under conditions that could have led to discharge under other than honorable conditions and was not eligible for physical disability processing.

3. Prior to reaching a determination that it is not in the interest of justice to excuse the failure to timely file, the Board normally looks at the entire file.  Only after the merits of a case have been considered do the panel members consider the statute of limitations. The display of the details of the record of service and the pertinent regulatory and statutory provisions shows that the merits of this case were considered.  Had the Board determined that an error or injustice had existed in this case, it undoubtedly would have recommended relief in spite of the 3-year time limit. 

4.  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.

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

___LLS_  ___JPS__  __CJS___  DENY APPLICATION

	Karl F. Schneider
			     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028907	
SUFFIX		
RECON		
DATE BOARDED	20000504	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19831122	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	CH 10	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  	108.04	
2.		
3.		
4.		
5.		
6.