IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100021239 


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 his earlier request for upgrade of his undesirable discharge to honorable.  As a new issue, he requests a medical discharge.

2.  He states he:

* was beaten more than once
* was threatened by a sergeant (SGT)
* suffered from a psychiatric disorder and major depression

3.  He provides:

* self-authored statement
* two medical records from the Department of the Veterans Affairs (DVA) Psychiatry/Mental Health Clinic, Long Beach, CA
* DD Form 214 (Report of Separation from Active Duty)
* DVA Board of Veterans' Appeals decision

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 AR20090012586 on 11 March 2010.

2.  The applicant provided a DVA Board of Veterans' Appeals decision as new evidence that will be considered by the Board.

3.  He enlisted in the Regular Army on 2 November 1970.

4.  On 7 February 1971, he was given a temporary physical profile of 113111 for cartilage abnormality of his knees.

5.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three occasions for failing to go to his appointed place of duty at the time prescribed on 12 and 13 March 1971 and 1 May 1971 and for being absent without leave (AWOL) from his unit from 16 March to 1 April 1971.

6.  His disciplinary record also shows he was convicted by a summary court-martial of being AWOL from 9 to 12 April 1971.

7.  He underwent a psychiatric examination and was diagnosed as having a schizoid personality with features of emotional instability.  The psychiatrist indicated:

	a.  the applicant's behavior was characterized by indecisiveness, unpredictability, helplessness, depression, and withdrawal.  This symptomatology was complicated by his moderate drug use to include marijuana, barbiturates, and the psychedelics lysergic acid diethylamide and mescaline; and

	b.  the applicant exhibited symptoms of depression and withdrawal in addition to demonstrating lack of judgment and impulse control.  He was and is mentally responsible, able to distinguish right from wrong, and has the mental capacity to understand and participate in board proceedings.

8.  The psychiatrist recommended the applicant be separated as expeditiously as possible.

	a.  The applicant's testing indicated a borderline condition.

	b.  There was at present no evidence of psychoses sufficient to warrant a medical disposition in accordance with Army regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as outlined in Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, section XV, paragraph 3-30-32.

	c.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate to the applicant's case by his command.

9.  His service record includes medical documentation which shows he was treated for:

* pain in his back, legs, and the back of his neck
* muscle sprain in right shoulder and back
* pain in both knees
* headaches
* pain in both eyes

10.  On 2 July 1971, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness as a result of frequent incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 7 months and 11 days of active military service.  His DD Form 214 shows he had 20 days of lost time.

11.  On 24 May 1977, the Army Discharge Review Board (ADRB) upgraded his undesirable discharge to a general under honorable conditions discharge under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP).  On 11 May 1978, the ADRB determined he didn't qualify for upgrading under the new uniform standards for discharge review and, as such, his upgraded discharge under the DOD SDRP was not affirmed.

12.  In 2005, he submitted an application to the ABCMR requesting his general discharge be affirmed.  On 27 January 2005 the Board disapproved his request.

13.  On 19 July 2010, the DVA Board of Veterans' Appeals granted him entitlement to service connection for a psychiatric disorder.

14.  He provided a self-authored statement in which he stated he was beaten by a correctional officer, humiliated by a drill SGT, and threatened by SGT L____ and forced to inhale gas because his gas mask wouldn't clear.  He was afraid of being beaten by the SGT again, so he went AWOL.  He was sent to kitchen patrol, but he couldn't perform his duties because of his back.  He was regularly sent to Madigan General Hospital, given a bunch of drugs, and sent back to the barracks.  He became addicted to drugs, but he was never treated.  He stated he was suicidal, fearful, and addicted to pain pills so he asked for a discharge.  He was told he could request an upgrade after he was released from the service.  He later had his discharge upgraded to honorable.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

19.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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's contentions in regard to him being beaten, threatened, and humiliated while in the service are acknowledged.  However, his service record is void of evidence to support his claims.  He provided no evidence other than his self-authored statement that the circumstances regarding his substance abuse and mental state were the reasons he committed the offense of being AWOL which led to his discharge.

2.  He contends that he suffered from a psychiatric disorder and major depression.  However, his psychiatric examination indicated a borderline condition and that at the time, there was no evidence which indicated psychoses sufficient to warrant medical disposition under the provisions of Army Regulation 635-40.  Additionally, there is no evidence he suffered mental trauma which required processing through medical channels or that his military career was ended due to medical unfitness.  It was further noted that his symptoms were complicated by his drug use.  

3.  His service record shows he received three Article 15's and he was convicted by a summary court-martial.  His service record is void of evidence which shows his medical condition contributed to his misconduct.

4.  It appears his chain of command determined his overall military service did not meet the standards for either an honorable or a general discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.  There is insufficient evidence now that would warrant an upgrade to honorable.

5.  The DVA Board of Veterans' Appeals granted him entitlement to service connection for a psychiatric disorder.  However, the DVA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he or she can be medically retired or separated.

6.  He has not presented sufficient evidence to show his discharge under Army Regulation 635-212 was in error or unjust or that his discharge should be changed to either an honorable or a medical 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090012586, dated 11 March 2010.



      _____________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)                                         AR20100021239



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ABCMR Record of Proceedings (cont)                                         AR20100021239



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