MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2001063456

         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. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge, Jr.		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 Bad Conduct Discharge (sic) be upgraded to a general or medical discharge.

APPLICANT STATES: Prior to his going AWOL, the offense which led to his discharge, he was diagnosed as having a personality disorder. The applicant contends that the diagnosis shows that he was mentally unstable at the time of his offense and discharge. As such, he should have received a discharge under medical conditions. The applicant adds that since his discharge he has sought and received treatment for his mental condition, which has allowed him to be employed as a police officer and now as a corrections officer. However, in order to further his career as a corrections officer, he requires an upgrade of his discharge.

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

He enlisted in the Regular Army on 1 March 1976, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-2.

He was assigned to a unit in Alaska. While so assigned, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, once for failure to go at the time prescribed to his appointed place of duty. He was also convicted by a summary court-martial of willfully disobeying an order, negligently failing to secure his weapon, and sleeping on guard duty; he was convicted by a second summary court-martial of being AWOL; and he was convicted by a special court-martial of being AWOL.

While receiving medical treatment for a variety of complaints, the applicant once reported that he “Took ‘acid’ last PM – Nerves are ‘shot.’” In a social history questionnaire the applicant later took he answered the question “Have you ever taken narcotics or drugs? If so, what kind of drugs?” with “Heroin, speed, uppers, downers and everything else.”

On 14 July 1977, the applicant was referred to a mental health physician by the social worker from the retraining brigade where the applicant was confined. The applicant was diagnosed as having a passive-aggressive personality, chronic, severe. The physician recommended that the applicant’s command discharge him for unsuitability due to his personality disorder.

The applicant was notified of his commander’s intention to recommend his separation due to his frequent acts of misconduct and of his rights in conjunction with that recommendation. The applicant waived his rights.




The applicant’s commander then forwarded his recommendation to discharge the applicant through his chain of command. In that recommendation he stated “Discharge for unsuitability is not deemed appropriate because his behavior is not due to an inability to satisfactorily perform within the meaning of unsuitability.” That recommendation was approved by the appropriate authority and the applicant was issued an Undesirable Discharge Certificate on 4 November 1977. He had 1 year, 2 months and 13 days of creditable service and 171 days of lost time.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.

Army Regulation 635-40, paragraph 4-3a, states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been




started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

Army Regulation 40-501, chapter 3, provides that personality disorders and substance use disorders may render an individual administratively unfit rather than unfit because of physical disability. Interference with effective performance of duty in association with these conditions will be dealt with through appropriate administrative channels.

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. The applicant’s personality disorder rendered him administratively disqualified for retention rather than medically disqualified. As such, he was not eligible for referral to a PEB. In addition, he was prohibited from being considered for disability separation due to his being processed for an administrative separation which authorized a characterization of service of under other than honorable conditions.

2. While the applicant’s personality disorder, which was determined to have existed prior to his entry in the Army, may have made it more difficult for the applicant to conform to the Army’s rules and regulations than other soldiers, the applicant’s continued use of illegal drugs while on active duty certainly couldn’t have helped him to conform. In addition, there is no indication that the applicant was unable to determine right from wrong and adhere to the right. Therefore, his violations of laws and regulations can only be viewed as willful misconduct. As such, the Board does not accept the applicant’s personality disorder as a matter of equity which would warrant upgrading his discharge.






3. 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

__rtd____ __mkp ___ ___eja__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063456
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020411
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.
2.
3.
4.
5.
6.