MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:   21 January 1999                          
	DOCKET NUMBER:   AC9610924/AR1999015914

	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.



	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:  The applicant requests that his undesirable discharge (UD) be upgraded to a general discharge (GD).

APPLICANT STATES:  In effect, that the characterization of his discharge is improper because he was mentally disabled at the time of his discharge.

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

On 17 August 1966, he enlisted in the Regular Army for 3 years and training in military occupational specialty 11B (Light Weapons Infantryman). 

He was found guilty by special courts-martial on four different occasions during his period of service.  On 17 February 1967, he was found guilty of stealing United States currency of a value of approximately $55.00, the property of another soldier.  On 5 August 1968, he was found guilty of being AWOL from 
28 August 1967 – 1 March 1968 and from 19 March – 11 July 1968.  On 
14 January 1969, he was found guilty of being AWOL from 25 December
1968 – 8 January 1969.  On 29 March 1969, he was found guilty of being AWOL from 10 February – 19 March 1969.  His sentences included reduction from pay grade E-2 to pay grade E-1 (twice); confinement at hard labor for 6 months (three times) once suspended; and forfeiture of pay (three times).  The
14 January 1969, conviction was set aside because the convening authority failed to order the sentence into execution.

On 7 May 1969, the applicant underwent a psychiatric evaluation by professionally trained personnel.  Even though, he was diagnosed to have an antisocial personality disorder that was chronic to moderate, he was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  Further, it was determined that he had the mental capacity to understand and participate in board proceedings.

On 12 May 1969, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. 

On 12 May 1969, the applicant was advised by legal counsel of the basis for the contemplated action and its effects, and the rights available to him.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD.  He waived further representation by legal counsel, and he waived consideration of his case, or a personal appearance before a board of officers.  He also declined to submit a statement in his own behalf.
On 20 May 1969, competent authority approved the recommendation and directed the issuance of a UD, under the provisions of Army Regulation 635-212, for unfitness, by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities. 

On 29 May 1969, the applicant was discharged.  He had completed 1 year,
4 months and 16 days of active military service and he had a total of 515 days lost time due to being in confinement and AWOL.

In connection with his application, the Medical Advisor to this Board, opined (COPTY ATTACHED), in essence, that the applicant was diagnosed by a psychiatrist on 7 May 1969, and no disqualifying mental defects sufficient to warrant disposition through medical channels were found.  Further evaluation of his medical records revealed no disqualifying or unfitting conditions.

The above advisory opinion was referred to the applicant for comment or rebuttal, but he failed to respond.

Evidence of record indicates the Army Discharge Review Board denied the applicant an upgrade of his discharge on 6 November 1981. 

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD was normally considered appropriate for such discharges.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  A professionally trained psychiatrist determined that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right, and he has submitted no medical evidence to the contrary.  His performance and conduct clearly departed from acceptable Army standards and, in fact, he knowing violated the Army’s policies when he continually went AWOL.


3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

4.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

5.  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

KJN_____  FNE_____  JPI_____  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC096-10924/AR1999015914
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
19990121
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19690529
DISCHARGE AUTHORITY
AR635-212  
DISCHARGE REASON
frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION
(NC)
REVIEW AUTHORITY

ISSUES         1.
 He was mentally disable at the time of his discharge.
2.

3.

4.

5.

6.