IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009

		DOCKET NUMBER:  AR20090006951 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant does not provide a statement in support of his application, but defers to a medical doctor who is the applicant's representative for Department of Veterans Affairs (VA) matters.

3.  The applicant provides the following documents in support of his application:  a VA Form 21-22a (Appointment of Individual as Claimant's Representative), dated 30 July 2008; a statement provided by his VA representative, undated; excerpts from his medical records; his initial enlistment orders (Armed Forces Examining and Entrance Station, Jackson, MS, Special Orders Number 183), dated 14 September 1973; a copy of a DA Form 4187 (Personnel Action), dated 27 April 1976; a copy of his DD Form 458 (Charge Sheet), dated 19 May 1976; and a letter from the VA dated 11 September 2008.

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.  The applicant enlisted in the Regular Army (RA) on 14 September 1973 for a 3 year period of service.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 76Y (Unit Armorer/Unit Supply Specialist).  The highest rank/grade he attained while in the service was specialist four (SP4)/E-4. 

3.  On 24 December 1975, the applicant's medical clinic records show that he was hospitalized in the Psychiatry Clinical Services section for a two-day period.  The diagnosis noted was schizoid personality. 

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for failure to be at his appointed place of duty and for being absent without leave (AWOL).

5.  Medical records show that on 5 April 1976 the applicant was seen in the hospital emergency room for evaluation of drug abuse.  The notes from the intake interview with the applicant show that he self-reported a 30-day hospitalization at the VA hospital in Jackson, MS.  The applicant states he was on the psychiatric ward.  The interviewee noted that since the applicant had been dropped from the rolls (DFR) of the Army and when he arrived on post to collect his pay, he was apprehended by the military police.  The examining psychiatrist noted that personnel tried to verify the applicant's hospitalization at the VA, but the VA had no record supporting the applicant's contention.  The psychiatrist's diagnosis was schizoid paranoia.

6.  On 7 April 1976, the applicant's medical clinic records show that the applicant was hospitalized in the Psychiatry Clinical Services section for a two-day period.  The diagnosis noted was schizoid personality.  

7.  On 26 May 1976, Headquarters, 67th Maintenance Battalion at Fort Benning, GA preferred court-martial charges against the applicant for two specifications of being absent without leave from 23 April 1976 to on or about 26 April 1976 and again from 3 May 1976 to on or about 7 May 1976.

8.  On 9 August 1976, the applicant signed his voluntary request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  The applicant submitted an undated statement with his request for discharge.  The applicant stated he had experienced serious medical problems since his enlistment.  He stated that he underwent treatment at Fort Sam Houston, TX; Fort Meade, MD; Martin Army Hospital, Fort Benning; and the VA hospital in Jackson, MS.  He stated that despite his history of illness, doctors were not able to find a cure.  He further stated that it would be in his personal best interest and that of the Army's to separate him instead of giving him a trial by court-martial.  He continued by saying that he would not get medical help if he was confined and that a prolonged separation from his family could ruin his marriage.  He concluded his statement by stating that he almost had completed his 3-year enlistment.  He requested a general discharge.

10.  The applicant's commander and intermediate commander recommended approval of the applicant's request for discharge and that he be furnished an Undesirable Discharge Certificate.

11.  On 27 August 1976, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private (PV1)/E-1, and that he be furnished an Undesirable Discharge Certificate.

12.  On 22 September 1976, the applicant signed a statement stating that there had been to no change in his medical condition. 

13.  On 22 September 1976, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200, by reason of for the good of the service - conduct triable by court-martial.  Records show he completed 2 years, 10 months, and 28 days of net active service during this period of active duty and that his service was characterized as under other than honorable conditions.  He also had 42 days of lost time. 


14.  On 17 March 1989, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was both proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

15.  In support of his application, a medical doctor who states he has the applicant's power of attorney provided a summary of the applicant's medical and personal history.  Records show the applicant appointed the medical doctor through the VA as the VA Claimant's Representative.  He states that the applicant's first mental breakdown was in Germany in 1975 or 1976 and that the applicant was treated with antipsychotic medication, returned to his unit, and then he relapsed.  He states the applicant was medically evacuated from Germany to Walter Reed Army Medical Center, Washington, D.C., then further evacuated to the military hospital at Fort Sam Houston, TX.  He states at Fort Sam Houston the applicant was hospitalized for three months.  He states the applicant was offered a medical discharge, but declined for he wanted to stay in the Army.  He states the applicant was reassigned to Fort Benning and he continued medical treatment with antipsychotic medication.  

16.  The medical doctor further states that in March 1976 the applicant was visiting his family in Jackson, MS when he became ill.  His family took him to the local VA hospital for treatment where he remained for one month.  The applicant's company commander thought he was AWOL during the period he was hospitalized.  When the applicant returned to his unit, the company commander initiated a court-martial charge against the applicant for AWOL.  He states that the applicant was offered a chapter discharge.  During the applicant's medical evaluation, he states the applicant did not have a psychiatric examination or a mental health evaluation and that the medical evaluation failed to account for his repeated hospital stays and daily prescriptions for antipsychotic medications.

17.  The medical doctor states the applicant tried to apply for a change in his discharge status in 1987 but that he was not mentally able to complete the forms.  The medical doctor concludes by saying the applicant has suffered with recurrent psychotic episodes, but states that he can function reasonably well when he takes his medications.  The medical doctor states that he has a power of attorney through the VA, that the applicant's illness (schizophrenia) is service-connected because it started when he was in the U.S. Army, that the applicant should be granted a 50 percent disability rating, and that the applicant and his family have been unfairly denied VA benefits.



18.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

19.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

20.  Army Regulation 635-40 further provides, in paragraph 4-3, that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

21.  Personality disorders are patterns of behaviors and relationships that interfere with a person's life over many years.  The cause of schizoid personality disorder is unknown.  Estimates of its incidence vary.  This disorder may be associated with schizophrenia and shares many of the same risk factors. However, schizoid personality disorder is not as disabling as schizophrenia, because it does not cause hallucinations, delusions, or the complete disconnection from reality that occurs in untreated (or treatment-resistant) 
schizophrenia.  A person with schizoid personality disorder appears aloof and detached, avoids social activities that involve significant contact with other people.  In addition, the person does not want or enjoy close relationships, even with family members.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

23.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

24.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's military personnel record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, for the good of the service -  conduct triable by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

3.  While there is evidence that the applicant was diagnosed with a schizoid personality, there is no evidence that the applicant was ever determined to be medically disqualified for retention that would have warranted separation 

processing through medical channels.  In addition, the applicant was precluded from being processed for separation under the disability evaluation system because he was pending an administrative discharge which carried the possibility of being characterized as under other than honorable conditions.  As such, the applicant is not entitled to a medical disability rating by the Department of the Army.

4.  In the statement provided by the VA physician, he states that the applicant was hospitalized at a VA hospital when he was being carried as AWOL.  However, the evidence of record shows that the applicant stated this when he was returned to military control but the hospital he alleged he had been admitted to had no record of treating him.  In addition, the physician contends that the applicant should have been given a 50 percent disability rating for schizophrenia.  However, the applicant was never diagnosed as having schizophrenia while he was on active duty.  He was diagnosed as having the less debilitating condition of schizoid personality.  The determination of whether the applicant's current disability due to schizophrenia is service-connected lies with the VA, not the U.S. Army.

5.  The ABCMR does not routinely upgrade a properly-executed discharge solely for an applicant to obtain benefits from another Governmental agency.  The applicant signed a statement in his request for discharge stating he could be denied benefits as a veteran under both Federal and state law.

6.  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.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge either to an honorable or to a general, under honorable conditions discharge.

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 for correction of the records of the individual concerned.



      _______ _  X _______   ___
               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)                                         AR20090006951



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ABCMR Record of Proceedings (cont)                                         AR20090006951



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