MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001061611

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: He was very immature when he was in the Army, having enlisted just after his 17^th birthday. Also, he suffered from a mental disorder while he was on active duty, and should have been discharged when he attempted suicide during basic combat training. He concludes that he could not take the pressure of military service.

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

He enlisted in the Regular Army right after his 17^th birthday, on 9 November 1964. He was awarded the military occupational specialty of light vehicle driver.

He accepted non-judicial punishment (NJP) on nine occasions, as follows: 5 April 1965 – Absent Without Leave (AWOL); 2 August 1965 – AWOL and failure to go to his appointed place of duty; 16 September 1965 – Incapacitated for duty due to prior indulgence of alcoholic beverages; 30 November
1965 – AWOL; 8 February 1966 – AWOL; 10 March 1966 – AWOL; 4 April
1966 – AWOL; 5 May 1966 – AWOL; and 23 August 1966 – AWOL.

He was convicted by three courts-martial, as follows: special court-martial (SCM) 30 March 1966 – AWOL from 14 to 22 March 1966; summary court-martial, 1 March 1967 – Failure to go at the time prescribed to his appointed place of duty for a period of six days; SCM, 1 September 1967 – Stealing a .45 caliber pistol, the property of the Government; stealing a typewriter, private property; and disposing (selling) the .45 caliber pistol, property of the Government.

On 3 December 1965, the applicant’s commander notified him of his intent to bar him from reenlistment. The applicant elected not to make any statements in his behalf, and the bar was approved and imposed against him.

On 29 August 1967, the applicant was evaluated by a military psychiatrist. The psychiatrist determined that the applicant did not have any psychiatric or organic brain disorder, nor was there any indication that the applicant suffered from anxiety or depression. The psychiatrist stated that “He is glib and brags about his deviant acts. Tells of plans he’s been thinking about [concerning] robbing a
bank . . . this man has a large super-ego defect.” The psychiatrist diagnosed him as having a sociopathic personality and cleared him for any administrative action deemed appropriate by his command.

On 7 December 1967, the applicant’s commander notified him of his intent to recommend his discharge due to unfitness, and of his rights in conjunction with that recommendation. The applicant waived all of his rights.

On 11 December 1967, the applicant’s commander forwarded his recommendation to discharge the applicant due to unfitness. That recommendation was approved by the appropriate authority and the applicant was issued an Undesirable Discharge Certificate on 22 December 1967.

Army Regulation 635-40 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 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.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

On 17 June 1981, the Army Discharge Review Board denied the applicant’s request 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. The applicant’s records do not contain any evidence that he attempted suicide while he was in basic combat training. However, even if there were, it would not necessarily constitute grounds for discharging him. A finding would have had to be made that he had a psychiatric disorder which was medically disqualifying.
2. While the applicant was indeed young when he enlisted, he was discharged after being in the Army for three years. He was 20 years old at the time of his discharge.

3. The applicant’s record of nine NJP’s and three courts-martial are more than sufficient grounds on which to base an undesirable discharge.

4. The Board carefully considered whether the applicant knew what he was doing at all times, whether he knew those things were wrong, and whether he consciously elected to do them in spite of the ramifications of his actions. In this regard, the Board could not find any indication that the applicant did not know right from wrong and could not adhere to the right.

5. Even though Army regulations state that a soldier who is undergoing elimination action which may result in a less than honorable discharge cannot be processed through the disability evaluation system, the applicant’s command elected to insure he was psychiatrically cleared before initiating separation action against him. That psychiatric evaluation determined that he was free from psychiatric disorders or organic brain syndromes.

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

___jhl ___ ____rtd__ ____rjw__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061611
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020226
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A51.00
2.	A93.01
3.	A93.23
4.
5.
6.