IN THE CASE OF:	  

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:  AR20080015995 


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 reconsideration of an earlier request for a medical discharge.

2.  The applicant states that he does not agree with the Board's previous decision.  He claims, in effect, that he completed over two years of his service obligation and it was not until he was placed on medical care that he was discharged.  He thinks the Army took the easy way out.  He further states that he received a head injury while in the service and that the Board should take this into consideration.  He also indicates that he does not remember being afforded the opportunity to consult with counsel and questions if there is paperwork showing he declined the offer. 

3.  The applicant provides a service medical record, dated 6 November 1962, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005529, on 26 June 2008.



2.  The applicant provided a service medical record, dated 6 November 1962, which shows he was treated for a scalp laceration.  The record states that he struck his head following a drinking episode, that he was not unconscious, and that he complained of a headache.  This is new evidence that will be considered. 

3.  The applicant enlisted in the Regular Army on 15 December 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

4.  Between 22 April 1963 and 1 November 1963, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on seven occasions for being absent without leave (AWOL) from 2 April through 9 April 1963; for failure to repair; for absenting himself from his appointed place of duty and failing to perform the extra duties assigned to him after he reported; for failing to go at the time prescribed to his appointed place of duty and absenting himself without proper authority from his unit; for absenting himself from his unit; for absenting himself from his place of duty; and for absenting himself from his place of duty, respectively.

5.  On 20 June 1963, the applicant was convicted by a summary court-martial of being disrespectful toward a noncommissioned officer and for being drunk and disorderly in quarters.

6.  On 15 July 1963 and on 5 August 1963 the applicant was seen by the Department of Psychiatry and Neurology Outpatient Clinic.  On 6 August 1963, a psychiatric social worker indicated that no evidence of psycho-social pathology of a nature to deter full duty or administrative action was found.  It was found that the applicant passive-aggressively forced authority to make his life’s decisions for him.  His problems of immaturity followed the pattern of doing well for extended periods, but when one mistake was made he then gave up and made numerous others.  

7.  On 22 November 1963, the applicant received a psychiatric evaluation.  The Medical Corps psychiatrist noted that no evidence of neurosis or psychosis was found, recommended administrative separation, and psychiatrically cleared the applicant for separation.

8.  On 9 December 1963, discharge proceedings under the provisions of Army Regulation 635-209 (Personnel Separation – Enlisted Personnel) for unsuitability, character behavior disorder, were initiated.  The reason cited by the commander was the applicant’s character and behavior disorders characterized by a tendency to disregard the rules and regulations governing military personnel as evidenced by the punishments imposed on him during his tenure with the unit.
9.  On 9 December 1963, the applicant was advised of the basis for the recommended administrative elimination action.  He was afforded the opportunity to consult with counsel and declined.  He waived his rights to have his case heard by a board of officers.  He elected not to submit a statement in his own behalf.  A copy of the 9 December 1963 Affidavit (election of rights) will be provided to the applicant.

10.  The applicant completed a separation physical and was found qualified for separation.

11.  On 13 December 1963, the appropriate authority approved the recommendation and directed the applicant receive a general discharge.

12.  On 9 January 1964, the applicant was discharged, in pay grade E-2, under the provisions of Army Regulation 635-209, unsuitability, character behavior disorder, with a general discharge.  He had completed 2 years and 17 days of creditable active service and had 8 days of lost time.

13.  Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability.  That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or transient personality disorder due to acute or special stress and who was unlikely to develop sufficiently to participate in further military training and or become a satisfactory Soldier, would be discharged for unsuitability.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states Medical Evaluation Boards 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

15.  Army Regulation 40-501, paragraph 3-31 of the version in effect at the time, stated character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty would be dealt with through appropriate administrative channels.  





DISCUSSION AND CONCLUSIONS:

1.  Although the applicant now contends that his discharge should be changed to a medical discharge due to a head injury (i.e., a scalp laceration) he suffered on
6 November 1962, there is no evidence of record to show he was ever medically unfit to perform his duties.  In addition, he was found qualified for separation.  

2.  Army Regulation 40-501 provided that character and behavior disorders rendered an individual administratively unfit rather than unfit because of physical disability.  Therefore, there is insufficient evidence to show that the applicant was improperly separated administratively under the provisions of Army Regulation 635-209 rather than medically under the provisions of Army Regulation 635-40.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  ____X____  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 to amend the decision of the ABCMR set forth in Docket Number AR20080005529, dated 26 June 2008.



      ________XXX______________
               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)                                         AR20080015995



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ABCMR Record of Proceedings (cont)                                         AR20080015995



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