MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 12 SEPTEMBER 2003
         DOCKET NUMBER: AR2002070202

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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: Although the applicant does note on his application that "it was never mentioned about my being treated for Hepatitis," he is, in effect, requesting that his discharge be upgraded.

APPLICANT STATES: Via a self-authored letter, that he made some mistakes which resulted in his being court-martialed. He maintains that he was young, confused, and had a conflict with his commanding officer. The applicant states that his commander wanted to end his career and cites an incident where his commander "punched [him] in [his] stomach with his [the commander's] stick." He states that as a reflex he grabbed the stick from his commander and jerked it away. He states that since that incident everything "was down hill." The applicant states that while attending AIT (advanced individual training) he contracted hepatitis and needs his discharge upgraded so he can receive treatment for his condition by the VA. Other than his undated, self-authored statement, the applicant submits no evidence in support of his request.

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

He enlisted and entered active duty on 8 October 1976, at the age of 20, with 12 years of formal education, and a GT (general technical) score of 96. The applicant successfully completed training and in March 1977 was assigned to Fort Riley, Kansas. Shortly after his arrival at Fort Riley, he was promoted to pay grade E-2 and on 1 August 1977 he was promoted to pay grade E-3.

Several days after his promotion to pay grade E-3 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for being disrespectful towards a noncommissioned officer. His punishment included reduction to pay grade E-2.

The applicant's records contain a 12 September 1977 report of mental status evaluation. The evaluation, authenticated by a behavioral science specialist
(E-5) and the division psychiatrist, noted that the applicant was "experiencing moderate anxiety due to the loss of his girlfriend" and that when the applicant "loses a significant figure, he will manifest sleep and appetite disturbances, nervousness, and poor social and emotional responses…." The evaluation concluded by noting that "this pattern is typical of a man with a passive dependent personality." The evaluators also noted that the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right. The evaluators, however, recommended the applicant be discharged for unsuitability/personality disorder. There is no indication in available records that such administrative separation proceedings were initiated.

In November 1977 the applicant was punished under Article 15 of the UCMJ for disrespect and for stealing a watch belonging to another soldier. His punishment included reduction to pay grade E-1.
In January 1978 the applicant was convicted by a special court-martial of two counts of AWOL (absent without leave) totaling 24 days. While in an AWOL status (December 1977), the applicant was married.

In addition to the applicant's two records of non-judicial punishment and one court-martial action, his records also note that he was counseled on several occasions for not being where he was supposed to be, that he was cited on three separate occasions for speeding, one time which resulted in his apprehension by civilian authorities, and that his commander received one letter of indebtness on the applicant who had failed to make payments on a motorcycle. The counseling statements, speeding, and letter of indebtness, occurred in June, August, and September 1977.

In January 1978 the applicant was "self-referred" to the installation's drug counseling program.

In February 1978 the applicant underwent a second mental status evaluation. The evaluating official noted that the applicant did not suffer from any significant mental illness, that he was mentally responsible, able to distinguish right from wrong, and able to adhere to the right. Following completion of the second mental status evaluation, the applicant's unit commander initiated action to administratively separate the applicant for misconduct.

The applicant, who was notified of the proposed separation on 13 March 1978, consulted with counsel and requested that a board of officers hear his case. The board convened on 2 May 1978. During the proceedings, the applicant's unit commander noted that he had known the applicant since May 1977. He stated that the applicant was "insubordinate many times." The commander cited a specific incident in which he confronted the applicant about some misplaced items. The commander indicated the incident occurred "approximately two months ago." He noted that the applicant "was loud and insubordinate" and "unruly and refused to be quiet" during the incident. He also stated that the applicant "took up a karate stance as I showed him the items." The commander stated that he "used reasonable force against him [the applicant]" by using an ax handle "as an extension of [his] hand…to push his [the applicant's] hand and chest away." The commander stated that the applicant did not initially file a complaint, but did so later, which resulted in a verbal reprimand for the commander.

The applicant's "senior supervisor" stated during the board proceedings that "there had been an unsuitability packet on [the applicant]" but "it was pulled back."

A written statement from a physician's assistant was read on behalf of the statement. The written statement indicated that the physician's assistant (PA) had known the applicant "for some time" and that he "dealt with him several times." The PA wrote that the applicant "definitely has a personality disorder," that he went to mental hygiene in May 1977 "on his own," that he began using drugs because he couldn't cope with the service.

The board of officers ultimately recommended that the applicant be discharged "because of misconduct for incidents of a discreditable nature." The board recommended the applicant receive an "other than honorable discharge."

The applicant's legal counsel appealed the board's recommendation by citing the applicant's personality disorder and drug dependency as a basis to support separation under the provisions of Army Regulation 635-200, Chapter 13. He asked that the applicant, who "was never suited to the military" be "allowed the dignity to start life outside of the military with a discharge which will not hamper him for the rest of his life."

On 3 May 1978 the applicant was punished under Article 15 of the UCMJ for five counts of failing to go to his appointed place of duty.

On 19 May 1978 the commanding general, Fort Riley, Kansas, approved the board's findings and recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph
14-33b(1), under other than honorable conditions.

On 25 May 1978 the applicant was discharged.

Other than the mental status evaluation, there were no other medical records available to the Board.

Army Regulation 635-200 establishes the policies and procedures for the administrative separation of enlisted soldiers. Paragraph 14-33b(1), then in effect, provided for the administrative separation of soldiers involved in "frequent incidents of discreditable nature with civil or military authorities." A discharge under other than honorable conditions was normally considered appropriate for soldiers discharged under this paragraph. However, the separation authority could direct a general discharge if such was merited by the soldier's overall record.

Chapter 13 of Army Regulation 635-200, then in effect, provided for the separation of a soldier for unsuitability. Specifically, that chapter provided for the separation of soldier with a personality disorder "as determined by medical authority [the diagnosis must have been established by a physician trained in psychiatry and psychiatric diagnosis] and described in the Diagnostic and

Statistical Manual…of Mental Disorders…." The condition must have been deeply ingrained and a maladaptive pattern of behavior of long duration which interfered with the member's ability to perform his or her duties. Exceptions to this paragraph included "combat exhaustion and other acute situational maladjustments."

There is no evidence the applicant appealed to the Army Discharge Review Board, to have his discharge upgraded, within the prescribed 15-year time frame.

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 evidence shows that the applicant was 20 years old at the time he entered active duty, that he successfully completed training and was promoted to pay grade E-3, prior to ever having any consistent disciplinary problems. The fact that he was able to serve honorably for more than a year supports a conclusion that his "personality disorder," diagnosed in September 1977 was more situational, rather than one of "long standing duration." The Board notes that the September 1977 diagnosis also indicated that when the applicant "loses a significant figure, he will manifest sleep and appetite disturbances, nervousness, and poor social and emotional responses" and that this was a pattern "typical of a man with a passive dependent personality." That diagnosis followed the loss of the applicant's girlfriend, which further confirms his condition was "situational." As such, his administrative separation for unsuitability would not have been warranted.

2. The applicant's contention that he was young, confused, and in conflict with his commander, is not supported by any evidence provided by him or in available records. The Board notes that the applicant was 21 years old at the time of his first UCMJ action in August 1977 and that the incident with his commander occurred two months prior to his May 1978 separation board, which was well after he had already accumulated two records of non-judicial punishment and been convicted by a court-martial. The Board finds that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with the applicant's overall record of military service.

3. The fact that the applicant is now unable to secure VA benefits for a service-incurred illness is not sufficiently mitigating to warrant the relief requested.

4. 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 that requirement.
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

__JNS __ __DPH __ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070202
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020912
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.	110.00
2.
3.
4.
5.
6.