APPLICANT REQUESTS:  That his undesirable discharge be corrected to a medical retirement.

APPLICANT STATES:  He was discharged because of his race and his alleged sexual lifestyle.  However, 15 years after his discharge, he has been told he was classified as insane when he was on active duty.

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

He volunteered for the draft and entered on active duty on 4 March 1964, was awarded the military occupational specialty of infantryman, served a tour in Vietnam, and was promoted to pay grade E-3.  He was honorably released from active duty on 12 February 1966 by reason of overseas returnee and was transferred to the USAR Control Group (Annual Training).

He reenlisted on 18 April 1966, served continuously though reenlistments, served two additional tours in Vietnam and one tour in Korea, and was promoted to pay grade E-7.  His significant awards and decorations include the Combat Infantryman Badge, the Bronze Star Medal, the Air Medal, and the Army Commendation Medal.

While the applicant was serving as a testing supervisor for trainees, on 7 February 1977 he was convicted by a general court-martial of one specification of violation of Article 125, UCMJ, in that he committed sodomy with a male private, and two specifications of violation of Article 134, UCMJ, in that he committed indecent, lewd and lascivious acts with two other male privates.  The sentence recommended by the court was a reduction to pay grade E-1, to forfeit all pay and allowances, and a Bad Conduct Discharge.

Prior to the approval of the court-martial, on 20 February 1977 the applicant was arrested for assaulting a warrant officer, the Criminal Investigation Division (CID) agent who had arrested him for the charges for which he had been convicted.  The applicant had pushed him to the ground, jumped on him, scratched him, and struck him on the neck and head with a closed fist.  Details concerning the assault is described in a CID report on the incident.  In that report the incident was chronicled as the applicant taking a seat across from the CID agent at a movie theater.  The CID agent was with his wife and another CID agent and that agent’s wife.  When the CID agent who had arrested the applicant exited the movie theater, the applicant came up behind him, throttled him around the neck from behind and began striking him.  The applicant then lifted the smaller CID agent off the floor and attempted to take his service pistol.  At that time the other CID agent drew his service pistol and struck the applicant several times on the back of his head.  The applicant was treated for a laceration on his head which required two stitches and was then confined.  On 22 February 1977 court-martial charges were preferred against the applicant for that incident.

On the date charges were preferred against him for assaulting the CID agent, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by (a second) court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

His request for discharge was accepted and the applicant was issued an Undesirable Discharge Certificate on 2 March 1977

On 11 March 1977 the installation staff judge advocate (SJA) reviewed the applicant’s general court-martial conviction.  In that review the SJA noted that during the trial the applicant was psychiatrically evaluated on two occasions.  

The psychiatrist initially evaluated the applicant as having a paranoid personality and a character and behavior disorder, but he believed that the applicant could tell right from wrong and adhere to the right.  In the psychiatrist’s second evaluation of the applicant, the psychiatrist added to his diagnosis that because of the severity of the applicant’s character and behavior disorder he would have some difficulty in adhering to the right.  As a result of that testimony, a sanity board was convened which concluded that the applicant had a personality disorder, mixed type, with moderate schizoid and paranoid features.  The sanity board determined that the applicant could tell right from wrong and that he could adhere to the right, but he had an impairment in his ability to adhere to the right because of the severity of his disorder.  
The SJA reviewing the court-martial considered the trial to be legally sufficient and recommended that the convening authority approve the findings of guilty of the charges and specifications, but also recommended that the convening authority disapprove the sentence since the applicant had already been discharged and had departed the installation.  The SJA’s recommendation was accepted by the convening authority.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) paragraph 4-3, provides that an enlisted soldier whom is the subject of elimination action that might result in a discharge under other than honorable conditions may not be processed for medical retirement or discharge.

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.

The VA, in determining qualifications for benefits administered by that agency generally holds that an individual who is discharged upon completion of his complete term of obligated service is eligible for benefits since that separation amounted to a complete and unconditional separation from the service.

On 27 March 1979 the Army Discharge Review Board denied a request from the applicant to upgrade his discharge.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:
1.  Whether or not the applicant had a medically disqualifying condition at the time of his discharge has no bearing on his eligibility for a medical retirement.  He was precluded from being considered for medical retirement due to the fact that he was pending discharge under other than honorable conditions.

2.  The applicant was discharged at his own request due to his being charged with assaulting a warrant officer.  There is absolutely no indication that his discharge was racially motivated.

3.  The applicant received a complete and unconditional separation on 12 February 1966 for his honorable service covering almost 2 years.  As such, he is eligible to apply to the VA for benefits provided by that agency, including medical treatment.

4.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director