MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           27 April 2000
	DOCKET NUMBER:   AR1999031156

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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:  Reconsideration of his earlier appeal to correct his records by upgrading his discharge.

APPLICANT STATES:  In effect, that he was mentally ill at the time of the misconduct that led to the discharge.  He submits a statement from a VA medical doctor to the effect that the applicant’s description of the events that led to the discharge convinces him that the applicant was, in effect, experiencing early symptoms of schizophrenia at that time.

The applicant also, again contends that six character references warrant the requested relief and that he was the victim of medical neglect by the Army because Motrin caused his mental illness.

COUNSEL CONTENDS:  Counsel, in effect, concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous considerations of the case on 9 November 1988 and 26 May 1999 (COPIES ATTACHED).

The applicant’s submission relative to mental illness are new evidence and argument that require Board consideration.  

His contentions and evidence relative to the character references and Motrin are not new.  They were considered during the previous reconsideration.

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, applicable law and regulations, it is concluded:

1.  The doctor’s opinion is noted.  However, in the absence of evidence that at the time of the incidents that led to the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems that he could not both tell right from wrong and adhere to the right, the contention of diminished capacity does not demonstrate an error or an injustice in the discharge. 
 
2.  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.

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

__EB ___  __TAP__  __KLW___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031156	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	4 September 1984	
DISCHARGE AUTHORITY	 AR 635-120	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A93.23	
2.		
3.		
4.		
5.		
6.