MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 June 2002
	DOCKET NUMBER:   AR2002071494

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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, that his bad conduct discharge be changed to a physical disability discharge.

APPLICANT STATES:  That he was suffering from a mental condition and was receiving medication for that condition.  He was awaiting a medical discharge when the incident occurred.  He still undergoes counseling at the Northeast Guidance Center-Behavioral Health Care Program.  He was told that if he stayed out of trouble for at least three years he could have his discharge upgraded.  He provides no supporting evidence.

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

That he enlisted in the Regular Army on 5 February 1970.  

On 19 February 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to get in the front leaning rest position.  On 24 February 1970, he accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty and disobeying a lawful order to get out of bed.

The applicant completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (Cook).

On 21 April 1971, the applicant accepted NJP under Article 15, UCMJ for going from his appointed place of duty, disobeying a lawful order, and being disrespectful in language towards his superior noncommissioned officer.

On 29 April 1971, the applicant was convicted by a special court-martial of unlawfully striking an individual on the head with his fist.  He was sentenced to be reduced to Private, E-1, to forfeit $60.00 pay for 2 months, and to be confined at hard labor of 60 days.

Following the applicant’s conviction, he was hospitalized for a penicillin overdose. Medical records show that he had been depressed intermittently for several months with crying episodes and that his appetite had been poor.  He was diagnosed with situational agitated depression.

Around June 1971, the applicant was hospitalized with a diagnosis of situational anxiety and immature personality.  It was recommended he be considered for an unsuitability discharge (Army Regulation 635-212).  There is no evidence this discharge was initiated.

On 16 July 1971, the applicant was charged with robbery and placed in pre-trial confinement on 20 July 1971.  

On 2 August 1971, the applicant was seen for drug-related problems.  He described flashbacks and rushes lasting about 1 to 5 seconds, about one per day.  The flashbacks were described as not that bad at present, hospitalization at that time was not recommended, and thorazine was continued.

On 29 November 1971, the applicant was treated after expressing self-destructive ideas.  At that time the examining physician did not believe the applicant was psychotic although he was a very emotionally unstable individual who could be difficult to handle.  There were suggestions that borderline psychotic qualities could exist, i.e., he claimed to hear noises, voices in the night but then again he realized that those were only thoughts in his head and he did have control and insight over those phenomena.  The examining physician did not believe the applicant was psychotic, he believed the applicant could stand trial and cooperate in his own defense.

On 30 November 1971, the applicant was convicted by a general court-martial of robbery.  He was sentenced to be confined at hard labor for 9 months, to forfeit $230.00 pay for 9 months, to be reduced to Private, E-1, and to be discharged with a bad conduct discharge.

The applicant was medically evacuated and admitted to Fitzsimons General Hospital, Denver, CO on 13 January 1972 for psychiatric evaluation.  A mental examination revealed he was alert and oriented and in no acute distress.  He was oriented in all three spheres.  His affect was flat and bland but that was felt to be due to the high dosage of thorazine he was on.  He had no hallucinations, delusions, or illusions.  Upon his discharge on 28 January 1972, he was diagnosed with improper use of LSD, amphetamines, heroin and hashish; acute psychotic reaction, severe, manifested by hallucinations, delusions, and withdrawal secondary to drug usage; and immature personality, chronic, severe, manifested by manipulative behavior, drug overdoses, and emotional instability such as crying.  It was recommended he be returned to the stockade to complete his court-martial sentence after which time he should be administratively separated.

The applicant underwent medical evaluation board (MEB) proceedings on            27 April 1972.  The Narrative Summary diagnosed the applicant with schizophrenia, schizoaffective type, chronic, severe manifested by inappropriate affect, severe depression, looseness of associations, confused thinking, autistic behaviors, delusions, feelings of inferiority, and inability to tolerate stress.  It was found that at the time of the alleged offense, in all probability the applicant was suffering from mental disease, defect or derangement although he was able concerning the particular acts charged to distinguish right from wrong.  However, at the time of the offense it was felt he had marked impaired capacity to adhere to the right secondary to his mental disease.  It was felt that he did understand the charges against him and was able to participate adequately in his appellate defense.  He was found to be medically unfit for the above diagnoses and it was recommended he be processed out of the service medically.  

On 5 July 1972, the unexecuted portion of the applicant’s sentence to confinement was remitted.  On 12 July 1972, he was restored to duty and placed on excess leave pending completion of the appellate review.  On 21 July 1972, the findings of guilty and the sentence were affirmed.

On 27 September 1972, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.  

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states that a soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.  

The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically stated that no factors should be established which would require automatic change or denial of a change in discharge.

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 Board is cognizant that the applicant was suffering from a mental condition and was receiving medication for that condition at the time he separated.  However, all psychiatric examinations determined that he was able to distinguish right from wrong.  In addition, because he was under sentence of a punitive discharge, he was not eligible to be referred for disability processing.  The MEB which considered his case considered it in error.

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

__JNS__  __EJA__  __TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002071494	
SUFFIX		
RECON		
DATE BOARDED	2002/06/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.