MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2002067631

         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
Mrs. Nancy Amos		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: In effect, that his discharge be upgraded.

APPLICANT STATES: That he suffered a mental breakdown while in Vietnam. He was wounded and transported to the 95^th Evacuation Medical Unit where a piece of shrapnel was surgically removed from his lower back. Then he was transported back to the States and assigned to the Ohio Penitentiary’s Mental Health Institution. As supporting evidence he provides five documents – one dated 11 January 1999, two dated 26 August 1999, and two dated 4 February 2001 showing the medications he is taking to control his diagnosis of disorganized schizophrenia.

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

He enlisted in the Regular Army on 2 April 1971. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

On 3 May 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for striking another private on the face with his fist.

On 9 July 1971, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his unit from 6:00 a. m. 6 July to on or about 10:30 p. m. 7 July 1971.

On or about 3 September 1971, the applicant arrived in Vietnam. He was assigned to Company A, 2d Battalion, 1^st Infantry, 196^th Infantry Brigade as an ammunition bearer on 9 September 1971.

On 22 January 1972, a Consultation Sheet, SF 513, notes that the applicant requested to see a psychiatrist. (It cannot be determined where this SF 513 originated.) He was referred to Psychiatry as he did not want to return to Vietnam. He was uptight about it, he had hepatitis, and he was on intravenous drugs in Vietnam. Psychiatry noted that the applicant was on intravenous heroin and contracted serum hepatitis. He started using “dope” two weeks after arriving in Vietnam to keep his “head together.” The applicant estimated he used heroin an average of four times a week. Due to illness in the family, the applicant returned home after serving about 4 ½ months. He began feeling “deeply” that he was God and that he, as God, should put an end to the world. He claimed that he would hallucinate, hearing a voice asking him how he would destroy the world. Most of these hallucinatory and delusional systems took place while he was “stoned on wine.” He could not say if they were present while he was not intoxicated. Delusional and hallucinatory patterns were not evident during the interview. The impression was that the possibility of a psychotic break was minimal and that most probably the perceptual aberrations were due to alcohol intoxication. The opinion was given that the applicant was suffering from acute adolescent situational reaction.

On 5 March 1972, the applicant was reassigned to the Medical Hold Company, Ireland Army Hospital, Fort Knox, KY as a patient.

On 16 June 1972, the applicant’s commander at the Fort Knox Medical Department Activities recommended the applicant be tried by a special court-martial with authority to impose a bad conduct discharge for being absent without leave (AWOL) from 6 March to on or about 6 June 1972, for assaulting a noncommissioned officer by striking him in the face with his fist, and for assaulting a specialist five by striking him with a means likely to produce grievous bodily harm, to wit: a cane.

On 30 June 1972, the applicant departed AWOL.

On 5 July 1972, the applicant was apprehended by Cleveland, OH, civil police and charged with two counts of murder. On 8 December 1972, he appeared in Cuyahoga County Common Pleas Court and found guilty of two counts of first degree murder. He was sentenced to serve two consecutive life terms in the Ohio State Penitentiary in Columbus, OH. He appealed and on 6 May 1974 his appeal was denied. He then appealed to the Ohio Supreme Court. On 2 October 1974, the judge ruled there was no case and his appeal was denied.

On 6 April 1973, the applicant’s commander notified the applicant that he was initiating separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court with confinement in excess of 1 year. On 30 April 1973, the applicant acknowledged the action. He requested a hearing before a board of officers and indicated he intended to appeal if he were convicted. He did not submit a statement in his own behalf.

On 5 February 1975, a staff physician at the Lima State Hospital responded to an Army inquiry, stating the applicant was a patient there and suffered from a major mental disorder. The physician believed the applicant’s current acute exacerbation was the result of a chronic mental condition that had been present for some time.

On 6 March 1975, a board of officers convened to consider the applicant’s case. The applicant was represented by counsel. Counsel contended that the applicant voluntarily submitted to the Veterans Administration and mental health clinics as a result of his use of drugs and he was suffering from a very acute and severe personality defect. The character of his service prior to the time he became involved with drugs was not illustrative of the character of service warranting an undesirable discharge. Counsel requested the applicant be given a general discharge. The board found that the applicant was undesirable for further retention in the military service because of his conviction by a civil court and recommended he be discharged and given an Undesirable Discharge Certificate.

On 17 March 1975, the appropriate authority approved the recommendation and directed the applicant be furnished an Undesirable Discharge Certificate.

On 27 March 1975, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge. He had completed 11 months and 28 days of creditable active service and had 733 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 23 August 1978 and 22 June 1987, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

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. 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.

2. The evidence of record shows the applicant began to use heroin within two weeks of arriving in Vietnam and was hospitalized at his own request when he developed hepatitis as a result of that usage. There is no evidence of record to show he was wounded in action.

3. There is no evidence of record to show the applicant’s conviction by a civil court on two counts of first degree murder was overturned due to insanity or diminished capacity or for any other reason. Therefore, it appears that the type of discharge given was and still is appropriate.

4. 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

__mkp___ __eja___ __rtd___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067631
SUFFIX
RECON
DATE BOARDED	20020411
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19750327
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	A61.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.