MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2003083515

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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: The applicant requests, in effect, reconsideration of his request for an upgrade of his Undesirable Discharge to an Honorable Discharge. There is evidence that the Board denied an earlier application for an upgrade of his discharge on 26 November 1976; however, neither the Memorandum of Consideration nor the case file are available; therefore, the case is reviewed de novo.

APPLICANT STATES: In effect, that he has suffered from service-connected schizophrenia since 1970. He adds that this mental illness began while he was in service and resulted in irrational behavior, to include his going absent without leave (AWOL). He contends that due to his service-connected schizophrenia, he should not be accountable for his actions and that only through medication has he been able to cope with reality. Medical statements indicated as sent in support of his application were not received for consideration.

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

The applicant was inducted in the Army of the United States on 16 October 1968. He successfully completed basic combat training at Fort Knox, Kentucky, and was ordered to attend advanced individual training (AIT) at Fort Polk, Louisiana. The applicant failed to report as ordered.

On 13 February 1969, while in AIT, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for failing to report to his unit on 12 January 1969 and remaining absent until about 0030 hours, 3 February 1969. The punishment imposed was a forfeiture of $26.00. The applicant did not appeal the Article 15 punishment.

On 28 February 1969, while in AIT, the applicant accepted NJP under the provisions of Article 15, UCMJ, for striking another soldier in the mouth with the butt of an M-16 rifle. The punishment imposed was a forfeiture of $20.00 for one month, 9 days restriction to the company area, and 9 days extra duty. The applicant did not appeal the Article 15 punishment.

Upon completion of AIT at Fort Polk, Louisiana, the applicant was awarded the primary military occupational specialty 11B (Light Weapons Infantryman). He proceeded en route to the Republic of Vietnam.

The applicant failed to report to the US Army Overseas Replacement Station, Fort Lewis, Washington, on 10 May 1969. While he was on leave in Battle Creek, Michigan, his girlfriend shot him in the left thigh with a shotgun. He arrived at Fort Lewis on 22 May 1969. Following initial treatment for the gunshot

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wound in Battle Creek, he went to Fort Lewis. On his arrival at Fort Lewis, he was hospitalized at Madigan General Hospital for further treatment. On his release from the hospital, the applicant was shipped to the Republic of Vietnam.

The applicant arrived in the Republic of Vietnam on 27 May 1969 and was assigned to B Company, 1st Battalion, 502nd Infantry Regiment. He was promoted to the rank of Private First Class with a date of rank of 27 May 1969. On 3 November 1969, the applicant returned to the United States on emergency leave.

The applicant failed to return to Vietnam and was reported as being AWOL effective 4 December 1969. He remained AWOL until 8 February 1970 when he surrendered to military authorities at Fort Sheridan, Illinois. He was attached to the Personnel Control Facility at Fort Sheridan pending submission of a request for compassionate reassignment. He was given a 3-day pass to obtain the necessary supporting documentation. He failed to return from the pass and on 20 February 1970, he was reported AWOL. He remained in that status until 27 April 1970.

On 9 September 1970, the applicant was found guilty by a special court-martial for the above absence. The applicant was sentenced to reduction to private, pay grade E-1, and to forfeit $30.00 per month for 2 months. The sentence was approved and ordered executed on 14 October 1970.

On 10 November 1970, the applicant was arraigned and tried by a summary court-martial for violation of a lawful general regulation by having an unregistered firearm in his possession at the Special Processing Detachment, Fort Riley, Kansas. The charge was dismissed and the applicant was exonerated when certificates were offered in court.

On 29 December 1970, the applicant departed AWOL and was dropped from the rolls of the organization. He remained AWOL until 30 March 1971 when he was apprehended by civilian authorities in Battle Creek, Michigan, and was returned to military control on 2 April 1971 in Battle Creek. He was transported to Fort Riley and was placed in pre-trial confinement on 8 April 1971.

On 20 April 1971, the commanding officer initiated action to discharge the applicant from the Army prior to the expiration of his current period of service under the provisions of Army Regulation 635-212 by reason of unfitness.

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On 20 April 1971, the applicant was advised that proceedings to discharge him from the Army under the provisions of Army Regulation 635-212 for unfitness were being initiated. The applicant acknowledged the contemplated action and waived consideration of his case by and appearance before a board of officers. He further acknowledged that he might encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued him. The applicant further understood that as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

On 25 April 1971, the applicant waived his rights to appear before and have his case considered by a board of officers but elected to submit a statement. In his statement, he stated that he had been wounded in the left thigh with a shotgun blast in Vietnam while on a village sweep in Phu Bai. He stated that he had been medically evacuated to the 85th Evacuation Hospital, hospitalized, then released after twenty days.

On 27 April 1971, the applicant underwent a Mental Status Evaluation by a psychiatrist on staff at the Mental Hygiene Consultation Service, Fort Riley. He was diagnosed to have an immature personality with antisocial tendencies. He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and had the capacity to understand and to participate in board proceedings. The evaluating medical corps physician opined that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. The evaluating physician further opined that the applicant would not adjust to military service and further rehabilitative efforts would not be productive. The applicant did not manifest a psychosis or neurosis and further management of the applicant's case was the commander's prerogative.

On 10 June 1971, the appropriate authority, a major general, approved the applicant's discharge and directed that an undesirable discharge be issued.

The applicant was discharged on 17 June 1971 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-212, Paragraph 6a, by reason of unfitness. His service was characterized as under conditions other than honorable and he was provided an undesirable discharge certificate. On the date of his discharge, he had 1 year, 8 months and 6 days active Federal

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service with 262 days lost under Title 10, US Code Section 972 and 94 days lost subsequent to his normal expiration term of service.

The applicant’s records show that the highest permanent rank and pay grade that he held on active duty was Private First Class, E-3. The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 17 September 1973, the applicant made application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB reviewed the applicant’s discharge and after careful consideration of his military record and all other available evidence determined that the applicant had been properly discharged. The applicant was notified on 17 September 1973 that his request for a change in the type and nature of his discharge was denied.

There is evidence that the applicant applied to this Board for an upgrade of his discharge on 7 September 1976. The Board denied the application on 26 November 1976 but neither the Memorandum of Consideration nor the case file are available for the Board's review; therefore, the case is reviewed de novo

On 5 August 1977, the applicant submitted an application for an upgrade of his discharge under the Special Discharge Review Program (SDRP). Review of his records revealed that he did not meet any of the primary criteria for a mandated upgrade of his discharge under that program; hence, he was notified on 22 February 1978 that his request for an upgrade of his discharge was denied.

On 4 December 1979, the applicant made application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB reviewed the applicant’s discharge and after careful consideration of his military record and all other available evidence determined that the applicant had been properly discharged. The applicant was notified on 12 May 1981 that his request for a change in the type and nature of his discharge was denied.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

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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 the above requirement.

2. The Board carefully reviewed the applicant’s record of service. The Board concluded that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3. The Board considered the applicant's contention that he has suffered from service-connected schizophrenia since 1970. The Board also considered the applicant's contentions that this mental illness began while he was in service and resulted in irrational behavior, to include his going AWOL, and that due to his service-connected schizophrenia, he should not be held accountable for his actions.

4. The Board noted that the applicant was diagnosed by a psychiatrist to have an immature personality with antisocial tendencies and not, schizophrenic, while he was in service. The diagnosing psychiatrist found that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and that the applicant did not manifest a psychosis or neurosis. The applicant was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and had the capacity to understand and to participate in board proceedings.

5. The examining psychiatrist opined that the applicant would not adjust to military service and rehabilitative efforts would not be productive; therefore, the applicant was not transferred for rehabilitation purposes.

6. The record shows that during his service time, the applicant accepted NJP on two occasions, was convicted by a special court-martial, and was exonerated by a summary court-martial when charges, which were preferred against him, were dropped. In view of these instances of misconduct, an undesirable discharge does not appear to be unduly harsh.

7. The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and

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performance of duty by military personnel. Through his misconduct, the applicant diminished the quality of his service below that meriting an upgrade of his undesirable discharge to an honorable discharge.

8. 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___ __ecp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083515
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710617
DISCHARGE AUTHORITY	AR 635-212, Para 6a
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.5000
3.
4.
5.
6.