MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR2000041584

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 discharge be upgraded to fully honorable or be changed to a medical discharge.

APPLICANT STATES:  That at the time of his discharge he was suffering from clinical/major depression and post traumatic stress disorder (PTSD).  As a result, his “willful and persistent” instances of being absent without leave (AWOL) could not have been willful.  Supporting evidence is as listed on the enclosure to the DD Form 149.  

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

He enlisted in the Regular Army on 28 June 1968 for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 32D (Fixed Station Facilities Controller). 

The applicant arrived in Vietnam on or about 13 May 1969 and was assigned to U. S. Army Strategic Communications Command Long Lines Battalion North.  

In February 1970, the applicant was treated for a complaint of high fever the past two days, a chilly feeling, diarrhea the past five days, anorexia, backache, and headache.  Malaria was ruled out and he was diagnosed with bacterial enterocolitis.

On or about 4 May 1970, the applicant departed Vietnam.

The applicant was AWOL from 22 May through 20 October 1970 and from           11 November through 3 December 1970. 

On or about 14 December 1970, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

The applicant departed AWOL before his request could be acted upon.  He was AWOL from 17 December 1970 through 28 January 1971 and from 2 March through 6 July 1971.  

On 9 July 1971, the applicant completed a separation physical and was found qualified for separation.  The applicant had noted on his Report of Medical History, DD Form 93, that he had had recent gain or loss of weight, depression or excessive worry, and nervous trouble.  On the reverse, the examining physician noted his recent weight gain and his depression/nervousness with no elaboration.
On 20 July 1971, court-martial charges were preferred against the applicant charging him with four specifications of AWOL.  

On 10 August 1971, after consulting with legal counsel, the applicant again voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf 

On 18 August 1971, the appropriate authority approved his request and directed he receive a discharge under other than honorable conditions.

On 31 August 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 2 years, 2 months and 29 days of creditable active service and had 340 days of lost time.

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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that enlisted soldiers may not be referred for physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

On 24 May 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.  However, on 11 July 1977 the ADRB did upgrade his discharge to general under honorable conditions under the Department of Defense Discharge Review Program (Special).  He had met one of the primary criteria (satisfactorily completing an assignment in Southeast Asia).  

In 1978, the applicant applied to this Board for an upgrade of his discharge to fully honorable.  His mother had made a sworn affidavit that the applicant went AWOL after the authorities at Fort Riley, KS denied him either a discharge or a compassionate reassignment.  In due course he was apprehended.  At that time he was employed by Oceanography Unlimited.  

On 21 December 1995, the VA diagnosed the applicant with major depression, “may be 2d episode with 1st after VN.”

On 28 December 1999, the applicant was diagnosed with major depression, recurrent, currently stabilized and PTSD.

The Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV) states that the essential feature of a major Depressive Episode is a period of at least 2 weeks during which there is either depressed mood or the loss of interest or pleasure in nearly all activities.  Five or more of nine symptoms must have been present during the same 2-week period (not including symptoms that are clearly due to a general medical condition), including depressed mood most of the day, nearly every day; markedly diminished interest or pleasure in all, or almost all, activities most of the day; significant weight loss or gain; insomnia or hypersomnia nearly every day; fatigue or loss of energy nearly every day; and diminished ability to think, or indecisiveness.  

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 this requirement.

2.  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.

3.  There is no evidence of record to show that the applicant’s “anorexia” was not caused by his illness.  There was no elaboration of the “depression/nervousness” noted during his separation physical examination and no evidence of record to show that such “depression/nervousness” was not the result of his pending separation.  The Board notes from the applicant’s mother’s 1978 statement that he was capable of obtaining civilian work.  There is nothing in the DSM-IV description of the diagnostic features of depression to suggest that depression results in the inability of the individual to distinguish right from wrong and to adhere to the right.  It cannot be determined if the applicant even reported to his duty station, Fort Riley, KS after his departure from Vietnam (with a departure date from Vietnam of 4 May 1970 and an AWOL date of 22 May1970, it appears he was reported AWOL – not assigned).  The Board concludes that he made a conscious decision to go AWOL rather than allow the Army to help him with any problems, either medical or personal, that he may have had. 

4.  The applicant was not eligible for referral for physical disability processing due to the characterization of his discharge.  In any case, he was never under military control after he returned from Vietnam long enough for the Army to provide him any help.

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

__ew____  __mvt___  __kwl___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000041584	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.