IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110002847 


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 dishonorable discharge be changed to a medical discharge. 

2.  The applicant states, in effect, that he was battered and treated unfairly while in the stockade.  At the time, he was suffering from paranoia, schizophrenia, and depression.  In fact, he had been under psychiatric treatment prior to entering the Army between 1966 and 1967.  He had been off his medication since 1968.  He does not believe he should have been allowed to join the Army. 

3.  The applicant provides no additional documentation in support of this case.

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 on 25 November 1968 and successfully completed basic combat training.  He did not complete advanced individual training.  

3.  On 5 June 1969, the applicant was convicted in accordance with his pleas by a special court-martial of being absent without leave (AWOL) for the period 
10 May through 14 May 1969, for leaving his place of duty without authority, and for being disrespectful in language towards a superior noncommissioned officer.  His approved sentence consisted of confinement at hard labor for 6 months and a forfeiture of $73.00 pay for 6 months.

4.  On 5 August 1969, the applicant was sent for a psychiatric evaluation prior to his appearance before a general court-martial.  The diagnosis was:  emotionally unstable personality disorder, severe.

5. On 29 August 1969, the applicant was convicted in accordance with his pleas by a general court-martial of disobeying a lawful order from a superior officer, of striking a superior officer, two specifications of assault and battery, and two specifications of willfully and maliciously setting on fire an inhabited building.  His approved sentence consisted of confinement at hard labor for 2 years, a forfeiture of all pay and allowances, and a dishonorable discharge.

6.  On 3 October 1969, the applicant, after an alleged suicide attempt, was sent for a psychiatric evaluation.  The earlier diagnosis of 5 August 1969 remained unchanged.  Evaluation of the applicant’s mental status revealed that there was no evidence of mental illness or depression and the applicant stated at the time “I got to get out of here.”  This was viewed as a manipulative attempt to remove himself from a difficult situation in the stockade, rather than intrinsic mental illness.  The report of psychiatric evaluation further commented that the applicant was not a suicidal risk, he was mentally responsible to distinguish right from wrong, was not mentally ill, and that he could be processed for any action deemed appropriate.  His condition required no hospitalization, it was not disabling, and he presented no disqualifying mental or physical defect sufficient to warrant discharge under the provisions of Army Regulation 635-40.

7.  On 29 December 1969, the U.S. Army Court of Military Review (USARCMR) considered his appeal and determined the findings and the sentence were correct in law and fact and affirmed both.

8.  On 17 September 1970, the U.S. Court of Military Appeals affirmed the decision of the USARCMR.


9.  On 19 October 1970, the applicant was discharged from the Army with a dishonorable discharge under the provisions of paragraph 11-1a of Army Regulation 635-200 (Personnel Separations), by reason of court-martial.  He had completed 5 months and 28 days of creditable active service with 514 days time lost due to AWOL and confinement.

10.  On 27 May 1987, the ABCMR denied his petition for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 provides policy for the separation of members with a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It states that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

13.  Army Regulation 635-40, paragraph 1-4 stated a Soldier who is charged with an offense for which he/she could be dismissed or given a punitive discharge may not be referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffered from paranoia, schizophrenia, and depression and that he had been under psychiatric treatment prior to entering the Army.  There is no evidence in the available records and the applicant has provided no evidence showing that there was a direct correlation between his acts of indiscipline and his subsequently diagnosed medical condition.  The psychiatric evaluations conducted by the military on his mental status revealed that there was no evidence of mental illness or depression.  

2.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  

3.  Additionally, even if a correlation could be established, by regulation, a member who is charged with an offense for which he/she could be dismissed or given a punitive discharge may not be referred for disability processing.

4.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20110002847



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ABCMR Record of Proceedings (cont)                                         AR20110002847



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