MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 December 2000                   
	DOCKET NUMBER:   AR2000046766

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		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 two court-martials be expunged from his records.

APPLICANT STATES:  That he should have received medical treatment instead of confinement for his personality disorder.  He provides a 5 October 1992 letter from Humana Health Care Plans; a 16 February 1997 Department of Veterans Affairs (VA) letter showing his disability rating for generalized anxiety reaction was increased to 70 percent; a VA rating decision dated 6 February 1997; a      24 April 1997 VA letter showing his combined rating was 80 percent; and a VA rating decision dated 4 April 1997 as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He was inducted into the Army on 13 September 1963.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  

Between 13 August and 26 September 1964, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for absenting himself from unit formation and introducing alcoholic beverages into the company area; absenting himself without proper authority; and absenting himself from unit formation and failing to go to his appointed place of duty, respectively.

On 5 November 1964, the applicant was convicted by a summary court-martial of committing assault by threatening a noncommissioned officer with a knife.  He was sentenced to be confined at hard labor for 1 month, to forfeit $55 pay per month for 1 month, and to be reduced to pay grade E-1.

On 10 November 1964, the applicant was convicted by a special court-martial of absenting himself from his unit from 1:00 a.m. until 1:45 a.m. and for committing an assault by kicking another soldier on the body with his foot.  He was sentenced to confinement at hard labor for 6 months, to forfeit $55 pay for 6 months and to be reduced to pay grade E-1 (sic).

On 2 December 1964, the applicant completed a separation physical examination.  It was noted that he had a characterological defect but that he was qualified for separation.

On 6 January 1965, the applicant completed a psychiatric evaluation.  No psychosis, neurosis, organic brain syndrome, or mental deficiency was found.  He was found to be so far free from mental disease, defect, or derangement as to be able to distinguish right from wrong and to adhere to the right and to have sufficient mental capacity to understand board proceedings and participate in them in his own behalf.  He was diagnosed as having a characterological defect and it was opined that there were no psychiatric contraindications to discharge under the provisions of Army Regulation 635-209.  

On an unknown date, the applicant’s commander recommended him for discharge because of unsuitability, specifically citing chronic alcoholism and instability.  On 8 February 1965, the applicant was discharged under the provisions of Army Regulation 635-209, with a general under honorable conditions discharge, for unsuitability.

A 5 October 1992 letter from the applicant’s doctor notes that the applicant was currently in therapy for continued problems with severe anxiety, panic attacks, decreased appetite, irregular sleep, anxiety and decreased concentration with a long history of these symptoms beginning in high school but markedly worsening in the service.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  Trials by courts-martial were warranted by the gravity of the offenses charged. Convictions were effected in accordance with applicable law and regulations and the punishments appropriately characterized the misconduct for which the applicant was convicted according to the standards at the time.

3.  The applicant’s January 1965 psychiatric evaluation found no evidence of psychosis, neurosis, organic brain syndrome, or mental deficiency.  He was found to be so far free from mental disease, defect, or derangement as to be able to distinguish right from wrong and to adhere to the right.  There is nothing in the 5 October 1992 letter provided by the applicant that would contradict the earlier finding that he could distinguish right from wrong.  There is no evidence that would show that at the time he committed the misconduct for which he was court-martialed he was not able to distinguish right from wrong.

4.  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

__jh____  __hof___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046766	
SUFFIX		
RECON		
DATE BOARDED	20001214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.