MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 26 March 2002
         DOCKET NUMBER: AR2001060109


         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
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Ronald E. Blakely		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: In effect, reconsideration of his earlier requests to change his general discharge to a medical discharge.

APPLICANT STATES: That in October or November 1964, while stationed in Germany, he incurred a fracture to his skull and was taken to the 97^th General Hospital. He states that the hospital ultimately transferred him to the psychiatric closed ward and he remained there under treatment until January 1965. He was then evacuated to Valley Forge Hospital in Pennsylvania. He claims that he tried to go back to duty, but couldn’t function due to problems with his memory and having headaches all the time. He submitted several documents in support of his request. He states that something had to have happened to him to change his life so drastically from the soldier he was during his first tour, to the person he became after the accident.

COUNSEL CONTENDS: That the Board, should look at the applicant’s renewed application and newly submitted medical documentation from the Valley Forge General Hospital, which notes his admittance to USA Hospital Frankfurt, Germany in January 1965, a medical opinion from Dr Joan Lorr, PHD, and Psychologist Dana Blackmer noting a severe impaired range of ability within the brain damaged area and a listing of current medication and dosage.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the original Memorandum of Correction prepared to reflect the Board's previous consideration of the case (AR2000049804) on 10 July 2001.

The applicant’s submissions are new evidence that require the Board’s consideration.

A 25 January 1965, status form, from Valley Forge Hospital, to his father showing his condition was satisfactory and that his length of treatment was indefinite, with no diagnosis. A 1982 VA Clinical Psychologist summary concluded that the applicant scored in the low average range of intellectual functioning, with a significant degree of intra-subtest scatter, which indicated that at one time he may have functioned in the average range. He was extremely concerned and preoccupied with a variety of somatic concerns. The testing also determined that he was very anxious and depressed and was extremely reluctant to entertain the possibility that his somatic complaints has an emotional basis. His interpersonal relationships were used as physical complaints as a means to obtain dependency gratification and to subtly manipulate others. His positive side showed that he seemed capable of retaining new information and, with some direction, would be able to benefit from his past experiences. He might, therefore, be able to compensate for or cope with some of his deficits. This process was likely a slow one due to his difficulties in establishing productive problem solving strategies as well as his lack of insight, low frustration tolerance, and occasional poor judgment. He also submitted a self prepared listing of his current prescribed medications, and a medical claim form VA Form 21-
526 (Veteran’s Application for Compensation or Pension) dated June 1982, which shows that he is claiming care for a fractured skull.

His record shows that before the vehicle (Jeep) accident he received several disciplinary actions. These include nonjudicial punishment under Article 15, Uniform Code of Military Justice in August 1963, confinement at hard labor from 25 August to 24 September 1964 from some unknown court-martial conviction and conviction by a special court-martial for assault with a dangerous weapon, absence without leave and disobedience.

Army Regulation 635-40, paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing. A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records. Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 applicant’s service was not interrupted because of his medical condition and/or a disability. He was separated by repeated acts of misconduct. His assertion that his behavior only became a factor after his accident and lengthy treatment during his second tour is unsupported by the evidence of record.

2. The applicant’s discharge from active duty by reason of unfitness with an under other than honorable conditions discharge was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.

3. The applicant was being processed for separation that could result in an other than honorable discharge. Absent affirmative action by the discharge authority he could not have been processed for a physical disability separation.

4. 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.

5. 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.

6. 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

___GDP_ __DSJ___ __REB__ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001060109
SUFFIX
RECON
DATE BOARDED	2002.03.26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.00
2.
3.
4.
5.
6.