MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2001064258


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		Member
Mr. Stanley Kelley		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: That his undesirable discharge be changed to a medical discharge. He also requests reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge to honorable.

APPLICANT STATES: In effect, that a doctor told him he was going to get a medical discharge but his commanding officer refused to sign it because of “troubles” between them. He contends that he did not know any better when his commanding officer told him that he was going to give him an undesirable discharge and mess up his life. He also contends that he was mentally unable to understand what was going on.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the consideration of Docket Number AR2000036310 by the Army Board for Correction of Military Records on 7 September 2000.

The applicant submits a DA Form 8-275-2 (Clinical Record Cover Sheet), dated 30 October 1964; a Standard Form 88 (Report of Medical Examination), dated 11 August 1964; an audiogram, dated 11 August 1964; a Standard Form
89 (Report of Medical History), dated 16 September 1964; a Standard Form
88, dated 16 September 1964; two health records dated 18 August 1964; and a letter, dated 11 October 2001, from the National Personnel Records Center.

This documentation contains new evidence and arguments which will be considered by this Board.

The Board noted that on 16 September 1964, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.

The Board also noted that on 14 September 1964, the applicant underwent a psychiatric evaluation and was diagnosed with an antisocial personality, chronic, severe. The psychiatrist determined the applicant had no disqualifying mental defect sufficient to warrant disposition through medical channels; was mentally responsible; was able to distinguish right from wrong and to adhere to the right; and that he had the mental capacity to understand and participate in administrative proceedings. The psychiatrist further determined that the applicant’s antisocial personality existed prior to his service. An administrative separation was recommended by the psychiatrist.




Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical
designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 Board considered the applicant’s contention that he should have been given a medical discharge. However, at the time of his separation medical examination, competent medical authority determined that he was then medically qualified for separation with a physical profile of 111111. Accordingly, the applicant was separated from active duty for unfitness, not as the result of a medical condition. Therefore, there is no basis for granting the applicant’s request for a medical discharge.

2. His contention that he was mentally unable to understand what was going on is not supported by the evidence of record. The applicant’s psychiatric evaluation, conducted on 14 September 1964, shows a psychiatrist determined that the applicant had no disqualifying mental defect sufficient to warrant disposition through medical channels; was mentally responsible; was able to distinguish right from wrong and to adhere to the right; and that he had the mental capacity to understand and participate in administrative proceedings.

3. The Board reviewed the applicant’s brief record of service which included one summary court-martial conviction, one special court-martial conviction and
66 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

4. 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.

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

RVO____ JPI_____ SK______ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064258
SUFFIX
RECON	Yes
DATE BOARDED	20020718
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19651030
DISCHARGE AUTHORITY	635-208
DISCHARGE REASON	Unfitness
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	108.0000
3.
4.
5.
6.