BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090014492 


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, reconsideration of his requests for an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he believes that he was suffering from insanity during his period of service and did not have the ability to perform his duties.  He also states that his problems began in the military after he was attacked.

3.  In support of his request, the applicant provides copies of his St. Lawrence Psychiatric Center, Massena Mental Health Clinic (NY) Psychiatric Evaluations and Progress Notes dated between 21 December 2004 and 24 June 2008; a letter from his mother, dated 6 June 2008; a letter from his sister, dated 23 June 2008; his Army Board for Correction of Military Records (ABCMR) Proceedings (AR20070006083), dated 8 November 2007; a Department of Veterans Affairs (DVA) Rating Decision, dated 7 November 2008; and DVA Social Work Progress Notes, dated 30 May 2009 and 27 June 2009.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s discharge be reviewed and considered for an upgrade to an honorable discharge.

2.  Counsel states, in effect, that the DVA found the applicant to be insane during the time he was in the military and because of his condition he was unable to perform his duties or respond responsibly to authority.

3.  Counsel provides no additional documentation in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the ABCMR in Docket Number AR20050012217 and AR20070006083, on 16 May 2006 and 8 November 2007, respectively.

2.  The applicant submits copies of his 2004 Massena Mental Health Clinic Progress Notes and Psychiatric Evaluations, a letter from his mother and sister, a 2008 DVA Rating Decision, and his 2009 DVA Progress, all pertaining to his mental defect and diagnosis of paranoid schizophrenia.  These documents are new evidence that will be considered by the Board.

3.  The applicant's military records show he underwent a medical examination for the purpose of enlistment in the Regular Army (RA) and was found to be physically and mentally qualified for enlistment.  He enlisted in the RA in pay grade E-1 on 17 June 1980, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 51B (Masonry Specialist).  He was promoted to pay grade E-4 on 1 November 1981.  He was awarded the Army Good Conduct Medal for his period of service from 17 June 1980 to
16 June 1983.

4.  The applicant was also punished under Article 15, Uniform Code of Military Justice (UCMJ), in October 1983, for wrongfully using some amount of marijuana.  A punishment of reduction to pay grade E-3, forfeiture, and extra duty was imposed.  He was again punished under Article 15, UCMJ, in November 1983 and January 1984, for disobeying a lawful order from his superior commissioned officer to report and two periods of AWOL.  His punishments included reductions, forfeitures, restriction, and extra duty.

5.  A Standard Form 558, dated January 1983, shows the applicant was transported to the hospital after cutting his wrist.  The form states that he felt all stressed and slit his wrist.  He was trying to tell people he was tired of being persecuted.  His wound was treated and he was referred to Mental Hygiene.

6.  All the facts and circumstances surrounding the applicant’s discharge are not on file.  On 28 December 1983, he underwent a mental status evaluation and his behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, an Army Medical Corps officer, found him to be mentally responsible, considered to have the mental capacity to understand and participate in separation proceedings, and to meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3.  The applicant was cleared for any administrative action deemed appropriate by the command.

7.  The applicant’s separation medical examination, dated 5 January 1984, found him qualified for separation.

8.  On 5 March 1984, the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for misconduct-pattern of misconduct, with an under other than honorable conditions discharge.  He was credited with completing 3 years, 7 months, and 13 days of net active service and 33 days total lost time due to AWOL.

9.  The applicant submitted copies of his Massena Mental Health Clinic Progress Notes, dated 16 March, 24 April, 19 June, and 16 November 2007.  The documentation shows he was diagnosed with and was suffering from paranoid schizophrenia.  The documentation also stated he was admitted to the hospital for this condition in December 1984.  He also submitted copies of his Massena Mental Health Clinic Psychiatric Evaluations, dated, 19 November 2004, 26 October 2005, and 24 June 2008.  The evaluations show he had a history of paranoid schizophrenia and had started receiving treatment at the clinic
20 months ago.  The applicant’s personal history showed he had not worked since 1989 and he was on social security and Medicare.

10.  The applicant also submitted a letter from his mother and sister, dated 6 and 23 June 2008, respectively.  The letters appear to have been submitted in support of the applicant’s DVA claim.  In her letter, his mother stated, in effect, that separating what was real and imaginative was the crux of the applicant’s problem.  She never detected any of the aforementioned conditions during his formative years.  He was adequate for the military at the time of enlistment, but after the beating by three thug troopers, the military should accept their responsibility for his present medical and psychological conditions.  

11.  In her letter, the applicant’s sister stated, in effect, that he had sustained a head injury after a beating in late 1981 at Fort Carson, CO.  Afterwards his behavior became erratic and unpredictable.  When her brother came home after his discharge he had changed dramatically in a very negative way.  He was paranoid, believing everyone was out to get him.  Within 30 days of discharge he was admitted to the hospital for his mental condition.  He had been on and off medications and in and out of treatment for the ensuing years.

12.  In a DVA Ration Decision, dated 7 November 2008, it was determined that the applicant was insane during his period of service in the Army.  The DVA examiner stated that it was very likely the applicant was suffering from pre-existing schizophrenia in the military which resulted in his marked difficulty in dealing with military life including going AWOL, disobeying orders, and smoking marijuana.  The examiner opined that the applicant’s behavioral difficulties in the military resulting in a "dishonorable" discharge were caused by or a result of his schizophrenia.  Based on a review of all evidence it was determined that he met the definition as defined under 38 CFR (Code of Federal Regulations 3.354 (Determinations of insanity).   

13.  The applicant further submits copies of his progress notes from his social workers, dated 10 and 27 June 2009.  The documentation describes the applicant’s diagnosis and treatment for a schizoaffective disorder.  The social worker stated that the applicant was clearly fine when he entered the service and he had over 3 years with a very good record.  However, as soon as his behavior decompensated, he began acting erratically, and rather than being treated he was given a less than honorable discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that during the applicant’s period of service from June 1980 to June 1983, he completed training and awarded an MOS, was promoted to pay grade E-4, and received the Army Good Conduct Medal.  He was punished under Article 15 of the UCMJ in October 1983 for using some amount of marijuana, in November 1983 for disobeying a lawful order and AWOL, and in January 1984 for AWOL.  In January 1983, he treated in the hospital for slitting his wrist because he felt all stressed.  He was referred to Mental Hygiene.  He was subsequently discharged for a pattern of misconduct in March 1984.  Prior to his discharge, he underwent a mental status evaluation and was found to be mentally responsible.

2.  After a careful review of all the applicant's military records and the documentation submitted with this request for reconsideration, there is sufficient evidence to support the contentions of the DVA and post-service psychiatric evaluations that the onset of the applicant’s mental condition most likely contributed to his misconduct during his last year of service.

3.  While the applicant’s misconduct cannot be condoned, the evidence supports a conclusion that the characterization of his service was too harsh, and as a result it is inequitable.  It is concluded that there are sufficiently mitigating factors that would merit a partial upgrade of the applicant's characterization of service to a general, under honorable conditions discharge.  It is also noted the separation authority could have directed a general, under honorable conditions discharge based on the Soldier’s overall record.  The reason for discharge was found to be both proper and equitable and therefore will remain the same.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x_____  ___x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decisions in Docket Numbers AR20050012217, dated 16 May 2006, and AR20070006083, dated 8 November 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was discharged from active duty in pay grade E-1 on 5 March 1984 with a general, under honorable conditions discharge and issuing him a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his character of service as general, under honorable conditions.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to fully honorable.




      ___________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)                                         AR20090014492



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ABCMR Record of Proceedings (cont)                                         AR20090014492



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