IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110010877 


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 an upgrade of his undesirable discharge due to medical conditions. 

2.  The applicant states:

* Any person accepted into the armed forces is presumed to be sane; this presumption cannot be removed
* The military physician alleged, without the applicant's consent, that his mental disease existed prior to his service
* Contrary to the physician's allegations, the chronic adjustment disorder seriously impacted his ability to distinguish right from wrong
* The Board failed to consider the chronic adjustment disorder in the DSM-IV (Diagnostic and Statistical Manual for Mental Disorders)
* His wrongful acts were a direct result of his chronic adjustment disorder
* He should not have been held responsible for his misconduct because his mental illness is considered a disability

3.  The applicant did not provide any evidence.

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 AR201000021119, on 7 April 2011.
2.  The applicant provides an argument which was not previously considered by the Board.  As such, it is considered new evidence and warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army for 3 years on 25 August 1959.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

4.  He was subsequently assigned to the 1st Airborne Battle Group, 187th Infantry, Fort Bragg, NC.  However, after being reported in an absent without leave (AWOL) status on 25 January 1960, he was reassigned to the Replacement Company, 82nd Administrative Company.  

5.  He arrived in Korea on 12 April 1960 and he was assigned to Company C, 1st Battle Group, 7th Cavalry.  However, on 20 June 1960, he was reported in an AWOL status and on 19 July 1960, he was dropped from the rolls as a deserter.  He was apprehended and returned to military control on 31 August 1960 at Fort Meade, MD, and he was confined from 1 to 22 September 1960.

6.  On 14 September 1960, he underwent a psychiatric evaluation at the Fort Meade, MD, Mental Hygiene Clinic.  The military physician stated that:

	a.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He had the capacity to understand and participate in any board proceedings contemplated.  There were no diseases or defects in him which were sufficient to warrant separation through medical channels.  

	b.  The applicant was diagnosed with moderate, chronic, inadequate personality manifested by poor judgment, poor adaptation to his environment, emotional instability, and inability to use his energies and capacities constructively.  His predisposition was great.  "Stress – minimal, routine military duty.  Impairment – great.  Line of duty – no – existed prior to service."  

	c.  The examining physician recommended administrative separation or any other administrative actions deemed necessary by the commander.

7.  On 23 September 1960, consistent with his plea, he was convicted by a special court-martial of one specification of AWOL from 20 June to 31 August 1960.  The Court sentenced him to a forfeiture of $50.00 pay per month for 4 months.  The convening authority approved the sentence on 27 September 1960.


8.  Subsequent to the court-martial conviction, it appears the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  It also appears the unit commander recommended an Undesirable Discharge Certificate.

9.  On 29 September 1960, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

10.  On 30 September 1960, he was seen for a final required medical examination which did not reveal any defects sufficient enough to warrant disposition through medical channels.  He was also cleared from the psychiatric standpoint.

11.  On 15 October 1960, he again departed his Fort Meade, MD, unit in an AWOL status.  He returned to military control on 21 October 1960.

12.  On 20 October 1960, consistent with his plea, he was convicted by a summary court-martial of one specification of AWOL from 15 to 21 October 1960. The Court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of $55.00 pay, and confinement at hard labor for 1 month.  The convening authority approved his sentence on 21 October 1960.

13.  On 24 October 1960, his unit commander initiated separation action against the applicant for unfitness with the issuance of an undesirable discharge.  The commander's action was based on the recommendation of the psychiatrist together with the fact that the applicant had been tried and convicted by two separate courts-martial, his utter disregard for military rules and regulations, and his established pattern of shirking.  The commander indicated that:

* The applicant's overall personality was clearly accented by a predominant emotional instability
* He readily uttered total disregard to military rules and regulations and has established a pattern or shirking
* Throughout his service, he failed to utilize his energy or capacity constructively 
* He repeatedly stated that the only thing he wanted was to get out of the Army
* He stated that it was immaterial to him what type of discharge he received
* He projected a defective attitude, poor judgment, and inadequate traits of character

14.  On 27 October 1960, the applicant's intermediate commander recommended approval of the proposed discharge.

15.  The separation authority's approval memorandum is not available for review with this case.  Nevertheless, his service records contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows: 

* he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities)
* his service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate
* he completed 10 months and 16 days of creditable net active service and he had 126 days of lost time
* he held the rank/grade of private/E-1 at the time of his discharge

16.  In October 1962, the Army Discharge Review Board determined he had been properly discharged and denied his request for an upgrade of his discharge.

17.  Special Regulation 40-120-1 (Medical Services - Medical Standards of Fitness and Unfitness for Retention on Active Duty), in effect at the time, contained the medical standards stated by the Surgeon General as to the fitness or unfitness for retention on active duty.  Section XV stated character and behavior disorders and immaturity reactions were not considered to render and individual medically unfit although they may be the cause of separation from active duty under the provisions of appropriate administrative regulation.  In such cases, careful distinction should be made between the underlying character structure and the symptoms in determining the correct diagnosis and disposition.

18.  Army Regulation 40-501 (Standards of Medical Fitness), currently in effect, governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  It outlines medical conditions which may render and individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels.  
19.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement, and states that the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

21.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  

	a.  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.

	b.  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.

22.  The DSM-IV states the essential feature of an Adjustment Disorder is the development of clinically significant emotional or behavioral symptoms in response to an identifiable psychosocial stressor.  Subtypes include “with disturbance of conduct” and “with mixed disturbance of emotions and conduct.”  The disorder can be acute or chronic.  Nothing in the description of this disorder indicates the individual cannot distinguish right from wrong.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal a disciplinary history which includes multiple instances of AWOL and/or court-martial convictions.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Prior to his discharge, he underwent a psychiatric evaluation that diagnosed him with moderate, chronic, inadequate personality manifested by poor judgment, poor adaptation to his environment, emotional instability, and inability to use his energies and capacities constructively.  

	a.  Under the regulation in effect at the time of his discharge, character and behavior disorders were not considered to render an individual medically unfit although they may be the cause of separation from active duty under the provisions of appropriate administrative regulation.

	b.  Under the current regulation, a history of or current manifestations of personality disorders render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

3.  There is no evidence to show he was diagnosed with chronic adjustment disorder.  In addition, the DSM-IV does not indicate that an individual with this disorder cannot distinguish right from wrong.

4.  There is no evidence in his records and he provides none to show his extensive history of misconduct was related to a mental disorder or a psychiatric condition.  The physician cleared him for any administrative action deemed by his chain of command.  His immediate commander commented that the applicant's:

* overall personality was clearly accented by a predominant emotional instability and he uttered total disregard to military rules and regulations and has established a pattern or shirking
* he failed to utilize his energy or capacity constructively and repeatedly stated that the only thing he wanted was to get out of the Army
* he stated that it was immaterial for him what type of discharge he received and projected a defective attitude, poor judgment, and inadequate traits of character
5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 to amend the decision of the ABCMR set forth in Docket Number AR201000021119, dated 7 April 2011.



      _______ _   __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)                                         AR20110010877



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ABCMR Record of Proceedings (cont)                                         AR20110010877



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