MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2001061848

         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. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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 Bad Conduct Discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES: Through counsel, that while the applicant’s condition had not been diagnosed at the time he enlisted in the Regular Army, he “had a long history of ‘anti-social behaviors,’ ‘acting-out behaviors,’ and long term treatment in six different inpatient programs. He was chemically dependent from age nine on, and most of his middle and late childhood was spent living in institutions, undergoing care and counseling.” Counsel describes several behaviors he alleges that the applicant displayed as a child, and contends that those behaviors are indicative of a person who is autistic. Counsel continues that the applicant has told him that he was attacked and sexually molested while stationed in Italy. However, the applicant was ashamed and did not report the incident. Because of this traumatic incident, added to the stress of military life, the applicant was unable to stop his use of controlled substances to which he had been addicted since childhood. He turned to hashish as a form of self-medication to avoid and escape his problems and to control the anxiety and confusion he was experiencing.

In support of the applicant’s request, counsel submits documents which show the applicant was hospitalized after ingesting half to three quarters of a pint bottle of vodka at age 10. He was institutionalized on 25 July 1978, at age 11, for “being in too many fights,” with a history of misbehavior which “goes back a long way.” On 3 July 1981, the applicant was again institutionalized for behavior problems and drug use. The applicant was given a clinical evaluation on 17 March 1982 which determined that he was chemically dependent on controlled substances. Progress notes from counselors state that the applicant did not wish to quit using drugs, so outpatient treatment for his drug use had little hope of succeeding. In October 1982, the applicant was again institutionalized for his behavior. During that institutionalization he went AWOL; was fired from a job; rode a cousin’s motorcycle without a license, lost control of the motorcycle and did $200.00 worth of damage to a private citizen’s yard; was suspended from school for lighting and throwing firecrackers on school grounds, and quitting jobs. Court documents submitted by the applicant’s counsel show that the applicant was convicted of trespassing, theft of a motorcycle, and fleeing from a police officer resulting in damage to a police car during the chase; and had “three prior police contacts, RE: shoplifting, absenting and damage to property.” Also submitted by counsel are psychological test summaries, which opine that the applicant was free from any mental disorder; that his problems were emotional. In one psychiatric interview with the applicant and his parents, it was stated, “His mother’s concern





is his ability to manipulate people. He is extremely friendly and has ability to con people into doing what he wants them to do.”

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

He enlisted in the Regular Army on 16 May 1984. As part of his enlistment processing, he was required to complete questionnaires to determine his eligibility to enlist. On his DD Form 1966, Record of Military Processing, Armed Forces of the United States, Item 27, he entered “None” in the space provided for the name and address of his previous employers. On page five of this form, he answered “No” to the questions “Have you ever taken any narcotic substance, sedative, stimulant or tranquilizer drugs, except as prescribed by a licensed physician?” and “Has your use of alcoholic beverages (such as liquor, beer, wine) ever resulted in the loss of a job, arrest by police, or treatment for alcoholism?” and “Have you ever been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological or personality disorders?” and “Have you ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?” and “As a result of being arrested, charged, cited, or held by law-enforcement or juvenile authorities, have you ever been convicted, fined or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been ‘sealed,’ expunged, or otherwise stricken from the court record)?” and “Have you ever been detained, held in, or served time in, any jail or prison or reform or industrial school or any juvenile facility or correctional institution in the United States or in a foreign country?” In Item “f” of this form, “Explain below ‘yes’ answers given in ‘a’ through ‘d’ above,” the applicant wrote “I have no law violations” and signed his name attesting to the truthfulness of his statement.

The applicant was awarded the military occupational specialty of parachute rigger and was promoted to pay grade E-2.

On 29 July 1985 the applicant pled and was found guilty by a special court-martial of wrongfully using marijuana in the hashish form between 1 January and 12 July 1985. The applicant was sentenced to a BCD, a forfeiture of $413.00, confinement for 31 days, and a reduction to pay grade E-1.







On 27 November 1985, the United States Army Court of Military Review affirmed the findings and sentence of the court-martial. The appropriate authority affirmed and executed the sentence of the court-martial and the applicant was issued a BCD on 2 May 1986.

In accordance with the Autism Research Institute, autism is a severely handicapping disorder which begins at birth or within the first 2 ½ years of life. For many years autism occurred in about 5 children per 10,000 live births. However, since the early 1990's, the rate of autism has increased enormously throughout the world, so that figures as high as 60 per 10,000 are being reported. The reasons for the increase are being debated, but the most likely cause appears to be the over vaccinations of infants. Most autistic children are perfectly normal in appearance, but spend their time engaged in puzzling and disturbing behaviors which are markedly different from those of normal children. They may stare into space for hours, throw uncontrollable tantrums, show no interest in people (including their parents) and pursue strange, repetitive activities with no apparent purpose. They have been described as living in a world of their own. Some autistic individuals are remarkably gifted in certain areas such as music or mathematics, as depicted in the film Rain Man. All need help. What is the Cause? The causes of autism are poorly understood, although it is clear that autism is a biological brain disorder. The Autism Research Institute is investigating various possible causal factors. What is the Outlook? In recent years there has been a marked increase in the percentage of children who have been able to attend school with normal children, and to live more or less independently in community settings. However, the majority of autistic persons remain severely handicapped in their ability to communicate and socialize with other people.

Army Regulation 635-200, Enlisted Personnel, Chapter 7, Section V, paragraph 7-17, states “Fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. The concealment of civil convictions, including the concealment of a record as a juvenile offender, is considered fraudulent entry. The concealment of medical defects can be considered fraudulent entry, under certain circumstances. If discharge is approved for fraudulent entry, an honorable, general, or under other than honorable conditions discharge may be issued.”





On 20 August 1998, the Army Discharge Review Board unanimously voted to deny the applicant’s request to upgrade his discharge.

Army Regulation 635-40, Physical Evaluation for Retention or Separation, paragraph 4-3, provides that an enlisted soldier who 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.

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. While the applicant’s counsel has submitted a variety of arguments attempting to convince the Board that the applicant is autistic, the Board notes that there is no substantial proof that the applicant is autistic. To the contrary, all the psychiatric tests taken by the applicant resulted in findings that the applicant suffered from emotional problems.

2. However, whether or not the applicant was autistic is really a moot point. There are many people who are autistic who do not use illegal drugs.

3. While the applicant’s sanity is not an issue raised by his counsel, counsel has alluded that the applicant’s alleged autism was the underlying cause of the drug abuse that resulted in his BCD. As such, the Board has opted to address the applicant’s sanity for the simple reason that unless he was insane, he was responsible for the offense which resulted in his BCD. Whether or not he is autistic does not alter that fact. In this regard, the psychiatric tests submitted by the applicant’s counsel consistently diagnose him as being free from any mental disorder.





4. The Board also notes that the applicant’s counsel has proven that the applicant fraudulently enlisted, an offense that in and of itself could result in an under other than honorable conditions discharge.

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

__mhm __ ____alr__ ___kak__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061848
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
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.	105.0 0
2.
3.
4.
5.
6.