RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            5 February 2004
	DOCKET NUMBER:   AR2003089822

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

The applicant requests, in effect, reconsideration of an earlier appeal that clemency in the form of an honorable discharge or a general discharge be granted.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the Board reconsider its original ruling on the basis of new evidence.

2.  Counsel states, in effect, that new medical evidence submitted establishes a medical basis to find that the applicant was acting under a mental or developmental disability he could not control and that it interfered with his ability to appreciate the nature of his conduct and the wrongfulness of his actions in the use of marijuana.  Although the medical evidence now submitted does not make a specific diagnosis of childhood autism, it does confirm evidence of a developmental disability that could have affected the applicant's ability to make and follow clear decisions and exercise control and good judgment in his behavior.  Counsel contends that there is substantial evidence in the applicant's childhood record that he had, in fact, failed to do this from an early age.  The medical evidence now submitted, based on a review of the applicant's medical and social history and current examinations, supports the position that the applicant had the symptoms of autism and schizoid-type personality disorder and that this interfered with his ability to overcome using marijuana as self medication in the state of depression induced by his sexual attack while stationed in Italy.  

3.  Counsel provides a letter, dated 26 August 2002, from a civilian physician and an assessment and report by the University of Minnesota Neuropsychology Laboratory, dated 10 May 2002.

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001061848 on 18 June 2002.

2.  Counsel submitted a letter, dated 3 September 2002, from a civilian psychologist.  He reported that the narrative of the applicant's mother does seem to indicate a symptom pattern of autism, that the applicant's pre-service records indicate a, greater than not, strong possibility of there being a schizotypal personality structure, and that disorganization of the self or ego disintegration means adaptive incompetence, i.e. the use of illicit chemicals to cope with his dysphoric emotions or psychic pain.  He also opined that, on the basis of the records available, the applicant had a history of chronic alcoholism and drug dependency from an unusually early age and that his mental disability, whether it was a developmental disorder or a schizoptypal personality disorder, would make it difficult for him to overcome the pressures caused by this dependency to use drugs as a form of self medication during periods of stress or depression.

3.  Counsel also submitted an assessment and report by the University of Minnesota Neuropsychology Laboratory, dated 10 May 2002.  The neuropsychological testing reveals a variety of cognitive deficits.  Some of these appear to be longstanding and developmentally based, while other deficits may be acquired.

4.  The medical evidence is new evidence which will be considered by the Board.

5.  On 29 July 1985, in accordance with his plea, the applicant was convicted by a special court-martial of using marijuana in the hashish form at diverse times from on or about 1 January 1985 to on or about 12 January 1985.  He was sentenced to be reduced to E-1, to forfeit $413 pay per month for 6 months, to be confined for 60 days, and to be discharged from the service with a bad conduct discharge.  On 17 September 1985, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to E-1, confinement for 31 days, and forfeiture of $413 pay. 

6.  The applicant underwent a pre-confinement physical examination on 29 July 1985 and was found qualified for confinement with a physical profile of 111111. 

7.  On 27 November 1985, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  On 26 March 1986, the bad conduct discharge was ordered executed.  

8.  The applicant was discharged on 2 May 1986 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  He had served 
1 year, 10 months, and 23 days of creditable active service with 25 days of lost time due to confinement. 

9.  There is no evidence in the available records that the applicant had any mental or medical condition prior to his discharge on 2 May 1986. 

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

11.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

12.  Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's contention that the new medical evidence submitted establishes a medical basis to find that the applicant was acting under a mental or developmental disability he could not control and that it interfered with his ability to appreciate the nature of his conduct and the wrongfulness of his actions in the use of marijuana.  Prior to the applicant's discharge on 2 May 1986, a physical examination was conducted and competent medical authorities determined that he was then medically fit for confinement with a physical profile of 111111.  The applicant was discharged as a result of a court-martial conviction, not as the result of a mental or developmental disability.

2.  The applicant’s record of service included one special court-martial conviction for drug abuse.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

FNE_____  JPI_____  KAH_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2001061848, dated 18 June 2002.

		Fred N. Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003089822	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19860502 	
DISCHARGE AUTHORITY	AR635-200, chapter 3	
DISCHARGE REASON	As A Result of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.