MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 October 2003
                  DOCKET NUMBER: AR2003088778

         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:

Ms. Joann Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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 general discharge be changed to honorable under medical conditions.

APPLICANT STATES: In effect, that he was discharged with mental problems that prevented him from performing his duties. He contends that he was hospitalized for attempted suicide, released from the hospital and was never given treatment for his psychiatric problems. He also contends that he was not fully examined nor given medical attention for his condition, that he was wrongly accused of having "habits or traits of character manifested by acts of misconduct," and that these acts were caused by his disability. He further states that he was diagnosed in 1973 with schizophrenia resulting in auditory hallucinations, bizarre behaviors, concentration problems and delusional thoughts, the same problems that he was suffering from while on active duty. He further contends that he has been under treatment for his disability for 40 years and is now able to cope. He goes on to state that he is now able to comprehend the effect his disability had on his behavior while on active duty and he feels that he was not treated fairly. In support of his application, he submits an undated letter of explanation; an undated Social Security Administration Explanation of Determination; VA Form 1-646 (Statement of Accredited Representative in Appealed Case), dated 22 March 1989; VA Form 21-4138 (Statement in Support of Claim), dated 21 March 2003; a copy of his DD Form 214 (Report of Transfer or Discharge); a Social Security Earnings Statement; DA Form 37 (Report of Proceedings of Board of Officers), dated 13 January 1961; Standard Form 600 (Chronological Record of Medical Care), dated 3 September 1960; a neuropsychiatric evaluation, dated 6 December 1960; and DD Form 493 (Extract of Military Records of Previous Convictions).

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

The applicant was inducted on 2 July 1959. He successfully completed basic combat training, advanced individual training, and basic airborne training.

On 21 October 1960, nonjudicial punishment was imposed against the applicant for a pass violation. His punishment consisted of extra duty.

On 6 December 1960, the applicant underwent a neuropsychiatric evaluation and was diagnosed with emotional instability reaction. The psychiatrist determined that the applicant was not psychotic (insane) or severely psychoneurotic, had no mental and/or physical disease or defect sufficient to warrant disposition under the provisions of Army Regulation 635-40, was mentally responsible and able to distinguish right from wrong and adhere to the right, and that he possessed sufficient mental capacity to understand the nature of any proceedings against him and to intelligently conduct and/or cooperate in his own defense. The


psychiatrist recommended that the applicant be separated expeditiously prior to the occurrence of further problems under the provisions of Army Regulation
635-209.

On 13 December 1960, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 24 November 1960 to 30 November 1960. He was sentenced to perform hard labor without confinement for 30 days and to forfeit $20 per month for 1 month. On 14 December 1960, the convening authority approved the sentence.

On 23 December 1960, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-209 for unsuitability due to habits and traits of character manifested by acts of misconduct. He cited that the applicant was a habitual shirker and had repeatedly committed petty offenses not warranting trial by court-martial.

On 26 December 1960, the applicant attempted suicide by means of hanging himself with a rope in the shower. A neuropsychiatric evaluation was performed on the applicant during his hospitalization and he was found to be sane and responsible at the time of the suicide attempt and also at the time of the examination.

On 28 December 1960, after consulting with counsel, the applicant requested consideration of his case before a board of officers.

On 13 January 1961, the applicant appeared before a board of officers. The board recommended that the applicant be discharged from the service because of unsuitability due to character and behavior disorders and apathy, defective attitudes and inability to expend effort constructively with the issuance of a general discharge. On 25 January 1961, the approval authority approved the findings and recommendations.

On 1 February 1961, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-209 for unsuitability due to character and behavior disorders. He had served 1 year, 6 months and 14 days of total active service with 16 days lost time.

There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. A decision is made as to the soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

Army Regulation 40-501, chapter 3, in effect at the time, provided for medical fitness for retention, promotion, and separation, including retirement. Paragraph 3-31 (Personality Disorders) of this regulation states that character and behavior disorders are considered to render an individual administratively unfit rather than unfit because or physical disability.

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 Board considered the applicant's contention that he was discharged with mental problems that prevented him from performing his duties. However, medical evidence of record shows that prior to the applicant's separation a psychiatrist determined that he was not psychotic (insane) or severely psychoneurotic, that he had no mental or physical disease or defect sufficient to warrant disposition under the provisions of Army Regulation 635-40, that he was mentally responsible and able to distinguish right from wrong and adhere to the right, and that he possessed sufficient mental capacity to understand the nature of any proceedings against him and to intelligently conduct and/or cooperate in his own defense. The Board also noted that following his suicide attempt on
26 December 1960, another neuropsychiatric evaluation was performed on the applicant during his hospitalization and he was found to be sane and responsible at the time of the suicide attempt and also at the time of the examination.

3. The Board considered the applicant's contention that his general discharge should be changed to honorable under medical conditions. However, the governing regulation states that character and behavior disorders are considered to render an individual administratively unfit rather than unfit because or physical disability. Accordingly, the applicant was administratively separated from active duty for unsuitability due to character and behavior disorders, not as a result of a medical condition.

4. The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6. 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

JL_____ MKP____ AAO_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088778
SUFFIX
RECON
DATE BOARDED	20031023
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19610201
DISCHARGE AUTHORITY	AR 635-209
DISCHARGE REASON	Unsuitability due to character and behavior disorders
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.