IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100019809 


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:

The applicant defers his request and arguments to his counsel.
 
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a reconsideration of his application for an upgrade of his undesirable discharge (UD) to an honorable discharge (HD).

2.  Counsel states that medical documentation provided was not previously available.  These records show the applicant had been treated for a psychiatric disorder that was misdiagnosed and/or not properly addressed at the time of his discharge.

3.  Counsel provides an extensive number of medical records covering psychiatric hospitalizations on ten occasions between May 1974 and November 1976.

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 AR20090006951 on 9 September 2009.

2.  The documents provided by counsel were not previously available to the ABCMR and constitute new evidence warranting additional Board review.

3.  The applicant served on active duty in the Regular Army from 14 September 1973 through 22 September 1976.  He was advanced to the rank and pay grade of specialist four/E-4.

4.  The record contains two Enlisted Efficiency Reports (EER), dated 27 January 1975 and 15 August 1975.  Both reports show he was rated as average or above average in all areas.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on two separate occasions, May 1975 and June 1976, for failure to go to his appointed place of duty.

6.  The record shows a total of 42 days of lost time:  1-31 March 1976, 1-4 April 1976, 23-25 April 1976, and 3-6 May 1976.  There is no record of any disciplinary action for the first two periods of AWOL.

7.  On 19 May 1976, court-martial charges were preferred for the final two periods of AWOL, 23-25 April 1976 and 3-6 May 1976.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that if the request were accepted, he could receive a discharge under other than honorable conditions (UOTHC) and be furnished an Undesirable Discharge (UD) Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

9.  The applicant was discharged on 22 September 1976 under the provisions of Army Regulation 635-200, chapter 10, with a UD.

10.  On 17 March 1989, the Army Discharge Review Board denied the applicant's request to upgrade the characterization of his discharge.

11.  His first recorded hospitalization at the 130th Station Hospital in Germany commenced on 1 May 1974.  The applicant was found to be non-communicative and appeared confused.  He reported hearing voices for 5 months prior to admission.  It was noted that when the voices were talking, the applicant would become literally transfixed and unable to move or speak.  During this hospitalization the applicant was unable to verbalize his thoughts and feelings.  He was transferred to Brooke Army Hospital.

12.  In a May 1974 Brooke Army Hospital narrative summary, the applicant reported having strange thoughts, a ringing sensation in his head, and was hearing voices starting approximately 8 months earlier [approximately the time of his enlistment].  During this hospitalization the applicant was unable to verbalize his thoughts and feelings.

13.  In a July 1974 Martin Army Hospital narrative summary, it is noted that the applicant reported having strange thoughts, a ringing sensation in his head, and was hearing voices starting approximately 3 weeks after arriving in Germany.

14.  In a September 1975 Jackson Veterans Administration (VA) Hospital Clinical Record-History, the applicant reported a ringing sensation in his head and that his head "locks up on the inside."  He reported the attacks started in 1972 or 1973.  The discharge note states he was considered to be absent without leave (AWOL), but had been advised that if he returned to his unit charges would not be preferred.

15.  The applicant was suffering auditory hallucinations and was admitted to the Jackson VA hospital for follow-up treatment.  He left against medical advice on 10 October 1975 and requested to return on 13 October 1975.

16.  In a 5 April 1976 Martin Army Hospital admission, it is noted that the applicant had been detained by military police and brought to the hospital due to being in a daze and not familiar with the activity around him.  He was initially brought to the hospital for possible drug and or alcohol abuse; however, he was admitted by Dr. J____ for paranoid schizophrenia.  The applicant reported he might be AWOL, but it was because he was hospitalized at the Jackson VA Hospital for 30 days.  His final diagnosis by Dr. H____ was schizoid personality.

17.  The applicant was hospitalized for 2 days on 2-3 June 1976 with a diagnosis of borderline schizophrenia.

18.  The 11 August 1976 Report of Medical History prepared in relation to the applicant's administrative discharge processing listed only the 3 June 1976 hospitalization.  There was no referral to psychiatry and the attending medical doctor stated there were no physical or mental defects warranting medical disposition.

19.  The table below is a synopsis of the medical documentation currently available.  The medical records were provided by the applicant's counsel to show the hospitalization locations, dates, diagnosis, and attending physicians.  From the available records it is not clear whether all of the attending doctors were psychiatrists.  The only doctor who rendered a diagnosis of a schizoid personality disorder was Dr. H____ at the Martin Army Hospital.

location
date
diagnosis/attending physician
130th Station Hospital Germany
1-14 May 1974
chronic undifferentiated schizophrenia (Dr. C____)
Brooke Army Medical Center
16 May-5 June 1974
acute moderate undifferentiated schizophrenia (Dr. T____)
Martin Army Hospital, Fort Bragg, Georgia
16-25 July 1974
at admission-schizophrenia 
(Dr. L____)
at discharge-schizoid personality disorder (Dr. H____)
Jackson, Mississippi Veterans Administration Hospital (VAH) 
15-24 September 1975
schizophrenia (Dr. W____)
Jackson VAH
7-10 October 1975
acute schizophrenia episode 
(Dr. W____)
Martin Army Hospital
4-7 November 1976
schizoid personality disorder with transient psychotic episode (Dr. H____)
Martin Army Hospital
22-24 December 1975
schizoid personality/borderline schizophrenia (Dr. H____)
Martin Army Hospital
5-7 April 1976
at admission-paranoid schizophrenia (Dr. J____)
at discharge-schizoid personality (Dr. H____) 
Martin Army Hospital
2 -3 June 1976
borderline schizophrenia (Dr. T____)
Jackson VAH
22 November 1976
schizophrenia (Dr. W____)
20.  MedlinePlus, an internet service of the U.S. National Library of Medicine, National Institutes of Health, provides the following definitions.

	a.  Schizophrenia is a severe, lifelong major affective psychosis.  People who have it may hear voices, see things that aren't there, or believe that others are reading or controlling their minds.  Other symptoms include unusual thoughts or perceptions, disorders of movement, difficulty speaking and expressing emotion, and problems with attention, memory, and organization.

	b.  Schizoid personality disorder (SPD) is a personality disorder characterized by a lack of interest in social relationships, a tendency towards a solitary lifestyle, secretiveness, and emotional coldness.  SPD is not the same as schizophrenia, although they share some similar characteristics such as detachment or blunted affect and there is increased prevalence of the disorder in families with schizophrenia.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

22.  Army Regulation 635-200, in effect at the time, set forth the purpose and policies for enlisted personnel separations.

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty.

	b.  A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the Article 15, UCMJ.  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.

	d.  A UD is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct or in lieu of trial by court-martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.

	e.  Paragraph 5-13 stated that a service member might be separated for unsuitability for a personality disorder (not amounting to a disability under Army Regulation 635-40) when a deeply-ingrained maladaptive pattern of behavior interfered with the individual's ability to perform.  A diagnosis by a psychiatrist was required.  When separation for unsuitability was warranted, an HD or GD was issued as determined by the separation authority based upon the individual's entire record.

	f.  Under chapter 10, 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 in lieu of trial by court-martial at any time after the charges were preferred.  A discharge UOTHC was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of a UD.

23.  The Manual for Courts-Martial, Rule 1003d3, states that an individual who is convicted of two or more offenses for which the authorized confinement totals 6 or more months, he or she may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized.

24.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A period of confinement of 6 months is authorized for each period of AWOL of more than 3 but less than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  Counsel states that medical documentation provided was not previously available.  These records show the applicant had been treated for a psychiatric disorder that was misdiagnosed and/or not properly addressed at the time of his discharge.

2.  As his EER's demonstrate, the applicant was performing his duties in an acceptable manner at least through August 1975, with no major impairment to his duty performance being noted.

3.  However, the applicant also clearly had a long-standing psychiatric disorder and/or a significant personality disorder dating from either prior to or shortly after his entry on active duty.  Within 2 months of entry on active duty he reported hearing "voices."  He was alternately afforded the diagnoses of schizophrenia and/or schizoid personality disorder depending on the attending doctor.

4.  In as much as his continued performance of his assigned duties creates a presumption of fitness, there is insufficient evidence to show the applicant should have been processed for medical disability.  It is important to note the applicant had at least one, if not more, hospitalizations for his mental conditions during the same period as his four periods of AWOL, as well as at least two following his periods of AWOL.  Therefore, it is reasonable to conclude that his condition contributed at least in part to his misconduct.

5.  Because of his four periods of AWOL and two NJP's, the applicant's service cannot be shown to have met the standards of acceptable conduct and performance of duty for award of an HD.  However, taking into consideration his psychiatric or mental condition and its probable effect on his conduct, it would be appropriate to grant partial relief by affording him a GD.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20090006951, dated 9 September 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the applicant's UD to a GD.

2.  The Board further determined 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)                                         AR20100019809



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019809



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1