MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 July 2001                   
	DOCKET NUMBER:   AR2001058935

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Eric N. Anderson		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 be upgraded.

APPLICANT STATES:  That in all fairness he should have received a medical discharge instead of an other than honorable discharge.  He had a nervous breakdown when he was 18 years old.  He never lied about the pains in his stomach or his heart.  His medical records showed that he was diagnosed with a constitutional psychopathic state, emotional instability; constitutional psychopathic state, inadequate personality, emotional instability; anxiety state; or severe nervous gastric disorder.  He was absent without leave (AWOL) for 2 months and served 4 months and 5 days in confinement but his records show that he had a problem in the beginning.  He provides extracts of portions of his service medical records and ten character witness letters as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from alternate sources.

The applicant entered active service on 26 September 1942.  

The provided extracts of his service medical records show that the applicant was diagnosed with a constitutional psychopathc state and emotional instability on     9 October 1944 and with a constitutional psychopathic state, an inadequate personality, and emotional instability on 5 April 1945.  Also on 5 April 1945, he was treated for gastric nervousness, severe psychoneurosis.

The applicant was discharged on 26 June 1945 with an other than honorable discharge.  The authority for his discharge is unknown.

On an unknown date but prior to 19 January 1960, the Army Discharge Review Board denied an application to change the character of the applicant’s discharge. That action is not available.

Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, there were no provisions of law whereby an enlisted person with less than 20 years service could be retired from the Army for physical disability.  Under then existing law, compensation and pension for service connected disabilities were under the jurisdiction of the Veterans Administration.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant’s records are not available.  However, the Board notes that at no time was he determined by competent medical personnel to be unable to distinguish right from wrong and to adhere to the right.  The Board presumes that the type of discharge given was appropriate given his mental health and the seriousness of his misconduct.  In addition, prior to 1 October 1949 a “medical” discharge did not exist for enlisted personnel with less than 20 years of service.

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___  __hof___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058935	
SUFFIX		
RECON		
DATE BOARDED	20010726	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.