MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 August 2001                   
	DOCKET NUMBER:   AR2001054175

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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:  In effect, reconsideration of his earlier appeal to correct his military records by changing the reason for his discharge. 

APPLICANT STATES:  In effect, he defers to his counsel.

COUNSEL CONTENDS:  That the applicant was treated unfairly.  His mental problems started while he was in the service and he is still under treatment for mental problems.  He should have been separated because of his mental problems and not just treated as a “rowdy soldier.”  Counsel submits a 21February 2001 letter from a civilian mental health agency, a 1998 mental health care plan up-date and a 1984 psychiatric evaluation. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999032774) on 1 August 2000. 

Counsels submissions are new argument that requires Board consideration.

The 21 February 2001 letter indicates that the mental health agency forwarded a 1981 initial evaluation, the 1998 care plan up-date and the 1984 psychiatric evaluation to counsel. 

The care plan update states that the applicant has been known to the clinic since 1980.

The 26 March 1984 psychiatric evaluation indicates that the applicant was being evaluated for a hospitalization program.  It relates, in part, that the applicant had a history of paranoid schizophrenia, and poly-substance abuse.  He had been involuntarily hospitalized in June 1983 and claimed drug and alcohol abstinence since then.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides, in pertinent part, that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMCA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.
Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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.  Prior to the ignition of the elimination proceedings the applicant underwent a mental status evaluation and was found to be mentally responsible.  He was able to tell right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in the elimination process.

2.  Prior to discharge he underwent a separation physical examination.  In the medical history which he provided for that examination he denied any problem with depression, excessive worry or nervousness.  He was found qualified for separation.

3.  The applicant was evaluated and no mental or emotional incapacity was found.  He was  examined and found qualified for separation.  He was being eliminated for separation and could not have been separated for medical reasons without an explicit finding by the GCMCA for which there is no available evidence of record.

4.  The applicant’s long history of mental illness is noted as is his history of poly-substance abuse.  However, in the absence of evidence that at the time of the applicants separation or the behavior that led to the separation he was so 

impaired by mental, emotional illness that he could not tell right from wrong and adhere to the right the contention of mental health problems do not demonstrate a error or an injustice in the discharge.  This is especially true in light of the applicant’s in-service and post-service history of substance abuse.

5.  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.

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

__INW __  __FNE__  __GJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2001054176	
SUFFIX		
RECON		
DATE BOARDED	20010809	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	UOTHC	
DISCHARGE AUTHORITY	AR635-200, Ch. 13	
DISCHARGE REASON	A67.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	108.04	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.