MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 September 2001                   
	DOCKET NUMBER:   AR2001057528

	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. Edmund P. Mercanti		              Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O'Shaughnessy		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 in lieu of court-martial for the good of the service be reviewed.

APPLICANT STATES:  That he suffered from a mental condition while he was in the Army of which he was unaware.

In support of his application he submits two psychiatric evaluations, one in which he is diagnosed as suffering from a mood disorder due to a childhood head trauma, the other in which he is diagnosed as suffering from mood disorder with homicidal thoughts, relational problems, and polysubstance dependence in reported full-sustained remission.  These evaluations are dated 14 and 20 June 2000, respectively.

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

He enlisted in the Regular Army on 20 June 1973 and was awarded the military occupational specialty of motor transportation operator.  

On 16 April 1974 the applicant, then serving in pay grade E-3, accepted nonjudicial punishment under Article 15, UCMJ, for going from his appointed place of duty as door guard, and for being disrespectful towards a senior noncommissioned officer.

On 24 April 1974 court-martial charges were preferred against the applicant for leaving his post during guard duty, and for failure to go at the time prescribed to perform extra duty.

On 8 May 1974 the applicant requested discharge in lieu of court-martial for the good of the service. 

On 20 June 1974 the applicant was given a separation physical examination and was found to be qualified for separation without any physical profile limitations.

That request was accepted and he was issued an Undesirable Discharge Certificate on 25 July 1974.

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.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation), paragraph 4-3, provides that an enlisted soldier whom is the subject of elimination action that might result in a discharge under other than honorable conditions may not be processed for medical retirement or discharge.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  There is no evidence that the medical conditions for which the applicant was treated in June 2000 existed when he was discharged from the Army in July 1974.  There is almost a 26 year separation between the applicant’s discharge and his psychiatric evaluations.

2.  However, even if there was evidence to show that the applicant suffered from a mental condition while he was in the service, it would not negate the appropriateness of his discharge.  Since there is no indication that the applicant was insane at the time his committed his court-martial offenses, he could not be processed within the disability evaluation system.

3.  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

__rvo____  ___teo __  ___ena _  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010927	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.