MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           17 May 2000                  
	DOCKET NUMBER:   AR1999032393

	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:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 general discharge to honorable.  He also requests that he be allowed to appear before the Board in person.  

APPLICANT STATES:  In effect, he was not mentally competent to make a request for discharge, that he was falsely accused and that he was denied due process both at his summary court-martial (SCM), because he was not allowed to call character witnesses, and in the chapter 10 discharge proceedings.  He states that he “never requested a Chapter 10 discharge, I was in the medical ward until I was put on a plane back to the U.S.   I never remember signing any forms.”

COUNSEL CONTENDS:  That the applicant’s medical records (62 pages) show that he was mentally unfit to take any legal action and that the statement of a Sergeant K____ shows that the applicant was unjustly accused.

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 on 5 May 1999 (COPY ATTACHED).

The documents submitted are new evidence that requires Board consideration.

Counsel writes that 62 pages of medical records are submitted.  Actually there  are numerous duplications.  The submitted medical documents include:

	  A Treatment Record Cover Sheet showing that the applicant was hospitalized from 14 to 17 January 1992 and was discharged with diagnoses of 
adjustment disorder and depression and character disorder.

	  A 17 January 1992 progress note signed by Dr, R_____ , Ph.D., Clinical Psychologist to the effect that the applicant had attended morning group (counseling),  He (the patient) stated that he wanted a divorce and that he could handle getting out of the Army.

	  A 17 January 1992 progress note signed by Dr. S. F_____, MD.  It states “Extensive meetings/discussions with patient’s attorney.  Meeting with attorney and patient.  Spoke with patient at end of day; clearly patient is stable at this point and does not need to be in hospital.  He understands what he is up against, will take the chapter 10, if he can and will come by my office on Tuesday for follow-up appointment.  Patient is not suicidal, homicidal or in any other way a danger.” 

  A 29 January 1992 admissions questionnaire cites “suicidal ideation” as the reason for admission.  It relates that the patient was angry at being referred 
for allegedly telling the inspector general (IG) that he would commit suicide.  He insisted that he did not need to be hospitalized.

	  Progress notes by Dr. R_____ on 30 January 1992 indicate that the applicant again stated that he did not need to be in the hospital and that he was supportive of other patients in the group. 

	  A 30 January 1992 typed statement signed by Dr. R_____ relates that the applicant’s lawyer Mr. C_____ “met with me and we discussed PT signing documents to have the PT released from the Army.  I advised councilor that at this time it is not advisable because PT is not competent enough to sign any forms or documents.  In fact PT is very stressed out and very depressed.  Councilor and patient met in the visitors room along with a volunteer of the H600 ward.  After Mr. C_____ left the volunteer informed me that councilor had PT sign some documents.  I called the CO and informed him of this.  CO replied ‘I’ll would look into this first hand.’  I talked to the PT after the CO and PT had no response to any question I asked.”     

  A 30 January 1992 discharge note at 1600 hours states that the applicant was released from the hospital and returned to his unit.  He was noted to be verbalizing appropriate coping skills.   
	 
The applicant also submitted an August 1991 statement from a Sergeant 
K____.  It states, in effect, that near the end of March 1991 she overheard three females talking about the applicant and how they were going set him up on sexual harassment charges as payback because he worked them too hard.  She later tried to testify in his behalf but was dissuaded by her chain of command from doing so.

In an earlier submission to this Board that applicant had included his earlier application to the ADRB.  It included his personal account of both the summary court-martial incident and of his separation under Chapter 10.  He stated that he had sworn statements establishing alibis for both him and the alleged sex partner.  He contended that he does not recall signing any papers.  Included with this submission were: a statement of support from a major general; the above mentioned statement by Sergeant K____; a statement from a lieutenant colonel praising the applicant’s performance during Operation Desert Storm; a statement from a sergeant first class to the effect that he and other NCOs had been willing and available to testify at the applicant’s SCM but they had not been notified as to when and where to appear; a statement from a sergeant major about the applicant’s personnel problems during Desert Storm and lack of support the applicant received in that regard from his chain of command; and a statement from a sergeant first class to the effect that during Desert Storm he had witnessed two instances of blatant disrespect to the applicant from one of the female soldiers who accused him in the SCM incident.  

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.   Notwithstanding, the psychologist’s 30 January 1992 statement and the applicant’s insistence that he doesn’t remember ever signing anything there is insufficient evidence to conclude that the applicant was not mentally competent to sign whatever he signed on 30 January 1992 or that he was incapable of making an informed decision whenever he signed his request for discharge.  It seems improbable a mental health professional would have allowed any meeting to occur if the applicant was not actually competent.  It also seems unlikely that such a professional would have emphasized how bad off such an incompetent patient was by writing “In fact PT is very stressed out.”  Additionally, the proposition that the applicant’s civilian lawyer would have solicited him to sign such important documents in the face of the slightest suggestion of mental incompetence is absurd.  Furthermore it is noted that the applicant was released back to his unit following the civilian attorney’s visit and notwithstanding his refusal to respond to Dr. R____’s questions.  
 
2.  Furthermore, the 17 January 1992 progress notes by Dr. F____ clearly show that the applicant had, even that early, already made a decision to request discharge for the good of the service to avoid trial by court-martial.

3.  The statement by Sergeant K_____ relates to the SCM and does nothing to show that the applicant was falsely accused of adultery in the incident that led to his voluntary request for discharge in lieu of trial by court-martial.

4.  The applicant’s voluntary request for discharge in lieu of trial by court-martial deprived him of all defenses in that instance, including alibis, and an insanity defense.  

5.  The information about the applicant’s SCM is noted but this Board does not retry cases.  There is no substantiating evidence as to what did or did not actually transpire at the SCM.  Furthermore, that incident is not particularly relevant to the applicant’s voluntary request for discharge. 

6.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.
 
7.  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.

8.  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

___CMF_  ___FE __  __RJW __  DENY APPLICATION

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

INDEX

CASE ID	AR1999032393	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	11 February 1992	
DISCHARGE AUTHORITY	 AR 635-200, chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A93.23	
2.		
3.		
4.		
5.		
6.