IN THE CASE OF:	

		BOARD DATE:	  9 April 2010

		DOCKET NUMBER:  AR20090015024 


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 that his pay grade at the time of separation be changed from E-1 to E-2.

2.  The applicant states, in effect, that the recent Board of Veterans Appeals (BVA) decision shows that he was suffering from a mental disorder and should not have been reduced to pay grade E-1.

3.  The applicant provides a copy of the 30 July 2009 BVA decision to extend service connection for a mental condition rather than continue the previous diagnosis of personality disorder.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel presented no request statement or evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted on 22 May 1969.  On 25 July 1969, upon completion of basic training he received an accelerated advancement to pay grade E-2, because of his "demonstrated outstanding soldierly qualities."


2.  He commenced but never completed advanced individual training. 

3.  On 30 September 1969, he was convicted by a special court-martial of two specifications each of willful disobedience and being disrespectful towards a noncommissioned officer.  The approved sentence included a forfeiture of $76 pay for 6 months, confinement for 4 months, and reduction to pay grade E-1.

4.  The applicant was released from confinement and went absent without leave (AWOL) on 10 January 1970.  On 12 January 1970, the applicant wrote to a Member of Congress stating that a psychiatrist recommended that he be discharged from the service on 28 August 1969.  He claimed that he was being abused and that he had four nervous breakdowns while in the stockade.  He stated that he would be either institutionalized for insanity or jailed because of an inability to control his emotions.  He stated that he did not intend to go back to duty.  

5.  The official response to the Congressman noted that the applicant had been evaluated by a psychiatrist, but that the report was not available.  It added that there was no record of any nervous breakdowns while in confinement, but did note that the applicant had been in disciplinary segregation because of failure to obey orders.

6.  Charges were preferred for being AWOL from 10 January to 11 March 1970. The applicant requested discharge in lieu of trial by court-martial.  On 7 April 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 with an Undesirable Discharge Certificate.

7.  On 19 September 1974 the Army Discharge Review Board upgraded the applicant's discharge to general, under honorable conditions.  A new DD Form 214 was published showing this change along with the original separation program designator (SPD) code of KFS, meaning he was separated in-lieu of trial by court-martial and a new SPD code of JMB to show (unsuitability personality disorder).  The ADRB noted that a 5 January 1970 psychiatric evaluation showed the applicant received a diagnosis of immature personality with low frustration tolerance.

8.  Army Regulation 635-200 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.  An other than honorable discharge was normally considered appropriate.  
9.  The Board of Veterans Appeals noted the in service psychiatric evaluations had been limited to findings of personality or a character and behavior disorder [in the terminology of the time].  These included an August 1969 diagnosis of paranoid personality and a recommendation for separation from the Service.  The BVA supported its final decision to afford the applicant service connected disability benefits because, "Dr. [S], the psychologist who treated [the Veteran] the longest and knew him best should be given special weight."

10.  Title 38, U.S.C., sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides a copy of the 30 July 2009 BVA decision to extend service connection for a mental condition rather than continue the previous diagnosis of personality disorder.

2.  The applicant was reduced to pay grade E-1 as part of the sentence due to a court-martial conviction that occurred after the applicant had been evaluated by a psychiatrist and found not to be suffering from a mental illness.  The fact that the psychiatrist recommended separation from the service did not mean that the applicant was not accountable for his behavior or should not have been tried by court-martial.

3.  The BVA decision reflects an opinion arrived at by using the VA's policies and regulations.  It does not show the applicant was improperly or unfairly reduced in rank.

4.  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.


5.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20090015024



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ABCMR Record of Proceedings (cont)                                         AR20090015024



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