IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080009537 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a medical discharge. 

2.  The applicant states, in effect, that according to the State of California, he was legally insane at the time of his discharge.  He states he was an inmate at Atascadero State Hospital, an all-male, maximum-security facility that houses psychiatric patients from all over the State of California.  In a lengthy self-authored statement, he describes his military career and legal problems.

	a.  He contends that while in the Republic of Vietnam (RVN), he was denied permission to marry a Vietnamese woman who bore his child.  He went absent without leave (AWOL) for a few days trying to get her out of the country, but failed in the attempt.  He was forced to leave the RVN without her.

	b.  At his next assignment, he went to a drive-in movie on 8 August 1969 with the daughter of a noncommissioned officer (NCO).  Before going to the movie, the young lady took him home to meet her parents.  It was a family setting, with the father in their living room polishing his shoes.  Later, on the way home from the movie, the applicant suddenly stopped the car and raped the young woman.

	c.  It has taken him years to figure out why he did it.  In explanation, he states when he visited the young lady's home and saw the NCO, everything just went orange before his eyes, like looking straight into the sun.  There was the NCO enjoying life with his wife and daughter; however, the Army had deprived him of the same life with the Vietnamese woman.  He, therefore, raped the NCO's 

daughter as an act of revenge for what the Army had denied him.  A psychiatrist convinced the court in California that he was insane at the time of the rape, and he was sent to Atascadero State Hospital.

	d.  His mental condition worsened while at Atascadero because of exposure to all the other inmates.  He states that 3 Army "shrinks" came to see him at the hospital and said that he had an "acute psychotic reaction" to his Vietnam experience.

	e.  He received a general discharge (GD), under honorable conditions on 27 April 1971.  He was released from Atascadero in 1975 and went to San Diego to live near Mexico in hopes of finding a female prostitute to castrate him.  The reason he wanted a woman to castrate him was out of guilt for the rape and because he felt he had betrayed his woman in Vietnam by that sex (sic).  He was not castrated.

	f.  He then went home to South Carolina to work for a construction company in order to earn "big bucks" so he could find a dominatrix to castrate him.  In South Carolina, he raped, mutilated and murdered a 25 year old woman, and is now serving a life sentence.

3.  The applicant continues by stating that he tried to castrate himself with a razor blade in 1988.  He's been on all kinds of psychotropic drugs and has been treated for depression.  He has repeatedly asked for a female psychiatrist with whom to talk and for a female doctor to castrate him, but to no avail.  His state [inmate] pay was taken away because he cannot bring himself to talk to a male psychiatrist about his castration complex.  He feels a very strong compulsion to become a eunuch.  He has become a "goddess worshipper" and the only way for him to gain salvation is if a woman castrates him.  The Army took away his woman and his son all those years ago, so he now wants a medical discharge so that he "...can use it to pay for a female psychiatrist and for a woman doctor (from the Army) to castrate..." him in order to heal his psyche.

4.  The applicant did not provide additional documentary evidence in support of this application.     

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 

3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 18 October 1967, the applicant enlisted in the Regular Army for a period of 4 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 95B (Military Police).  He attained the grade of specialist/E-4.  

3.  The applicant served in the Republic of Vietnam (RVN) from 14 April 1968 through 18 April 1969.

4.  On 15 April 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL).  His punishment consisted of a forfeiture of $50.00.  He departed Vietnam for an assignment at Two Rock Ranch Station, Petaluma, California.  Two Rock Ranch Station was a World War II Army Communications Station.  The station's location was ideal for monitoring Japanese communications during World War II.  During the Vietnam War, the station added training to it's mission.  Portions of the base were transformed into a Vietnamese village to train troops headed for Vietnam.

5.  On 4 September 1969, a complaint was filed in the Superior Court of the State of California for the Country of Sonoma, charging the applicant with the crime of rape on 8 August 1969.  On 10 October 1969, the applicant and his attorney entered a plea of not guilty by reason of insanity.  Two psychiatrists were appointed by the Court to examine the applicant.  They found the applicant insane at the time he committed the rape.  His criminal proceedings were suspended and he was committed to the Atascadero State Hospital for treatment until he became sane, at which time he was to be returned to the court for further proceedings.  On 3 July 1970, he was returned to the Court for further criminal proceedings pursuant to the recommendation of the Acting Superintendent and Medical Director of Atascadero State Hospital.  The Court found the applicant legally insane when he committed rape on 8 August 1969 and, therefore, not guilty by reason of insanity.  He was returned to the Atascadero State Hospital. 

6.  On 16 November 1970, the applicant's command recommended to the General Court-Martial Convening Authority (GCMCA) that the applicant be medically discharged from the Army.

7.  On 19 January 1971, a Medical Evaluation Board (MEB) was convened which found the applicant medically fit.  The MEB Narrative Summary (NARSUM) indicated that the psychiatric reports of the 2 court-appointed psychiatrists were carefully reviewed.  The reports concluded that the applicant "must have been" insane at the time of his offense; however, no diagnosis of mental illness was made.  The clinical records at Atascadero State Mental Hospital where the applicant remained for approximately 15 months were also reviewed and there was no indication that the psychiatric staff ever considered the applicant to be insane or to be suffering from mental illness. The continuing psychiatric diagnoses were (1) passive-aggressive personality, and (2) sexual deviation, aggressive sexuality, rape.  The MEB conducted an exhaustive and detailed psychiatric interview with the applicant.  It found no physical or mental condition present which warranted disposition of the applicant's case via medical channels under the provisions of Army Regulation 635-40.  He was eligible for retention.  He was considered sane and responsible for his actions, and possessed sufficient intellectual capacity to participate in administrative procedures.  The MEB felt that, at the time of the applicant's alleged offense in August 1969, he was in the process of an acute adult situational reaction, secondary to his immature handling of his personal problems, and that the reaction had resolved.

8.  On 29 January 1971, the applicant concurred with the findings of the MEB and indicated that he did not desire to appeal.

9.  On 18 February 1971, the GCMCA, based on the results of the MEB, did not favorably consider the applicant for a medical discharge.

10.  On 11 March 1971, the applicant's command initiated action to administratively discharge the applicant with a general discharge (GD), under honorable conditions.  

11.  On 27 April 1971, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 5, by reason of convenience of the government – Secretarial Authority, with an honorable discharge.  He was credited with 3 years, 6 months, and 2 days of active Federal service although he had been confined at the Atascadero State Hospital since 8 August 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show any lost time.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties 

of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows that on 10 October 1969, the applicant and his attorney entered a plea of not guilty by reason of insanity after the applicant was charged with rape.  Two psychiatrists were appointed by the Court to examine the applicant.  They found the applicant insane on the date he committed the rape.  On 3 July 1970, he was returned to the Court for further criminal proceedings pursuant to the recommendation of the Acting Superintendent and Medical Director of Atascadero that he was competent to stand trial.  The Court found the applicant legally insane on 8 August 1969 (date of rape) and he was returned to the Atascadero State Hospital. 

2.  The applicant's command recommended that the applicant be medically discharged.  To that end, on 19 January 1971, an MEB was convened which found the applicant medically fit.  The MEB NARSUM noted that the court psychiatrist concluded that the applicant "must have been" insane at the time of his offense; however, neither psychiatrist ever rendered a diagnosis of a mental illness.  The clinical records at Atascadero State Hospital where the applicant remained for approximately 15 months were also reviewed and there was no indication that the psychiatric staff ever considered the applicant to be insane or to be suffering from mental illness.  The continuing psychiatric diagnoses were (1) passive-aggressive personality, and (2) sexual deviation, aggressive sexuality, rape.  After the MEB conducted an exhaustive and detailed psychiatric interview with the applicant, it found that there was no physical or mental condition present which warranted disposition of the applicant's case via medically channels under the provisions of Army Regulation 635-40.  The MEB felt that at the time of the applicant's alleged offense in August 1969, he was in the process of an acute adult situational reaction, secondary to his immature handling of his personal problems, and that the reaction had resolved.  The applicant concurred with the findings of the MEB and he did not appeal.    

3.  The applicant was not discharged until a year and a half after he committed his civilian offense.  The California court only found that he was insane on the date he committed the rape and never provided any further mental diagnoses.  In 

fact, the clinical records at Atascadero State Hospital only showed that his continuing psychiatric treatment was for a passive-aggressive personality, and sexual deviation, aggressive sexuality, rape.  Further, the Acting Superintendent and Medical Director of Atascadero indicated that he was competent to stand trial on 3 July 1970.  

4.  Given the above, there is no basis upon which to grant the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080009537





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ABCMR Record of Proceedings (cont)                                         AR20080009537



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