BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130018280 


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 an upgrade of his undesirable discharge (UD) to a medical discharge.

2.  The applicant states the day before his arrest he had a "nervous breakdown." The Army had given him a shot of Thorozene and the next day he received a pass and went to Atlanta, GA.  That night he was arrested.  He does not remember any of the crimes he committed as his mind has blocked them out.  He was facing 3 to 40 years in prison.  He had two policemen stating that he had committed these crimes.  The only reason he stated that he was guilty was because of the two policemen.  His lawyer advised him that he would receive 
3 years in a plea agreement in exchange for a guilty plea.  He believes that he was insane that night.  It is his hope that his discharge would be upgraded to a medical discharge.

3.  The applicant provides no additional evidence.

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, in pay grade E-1, on 8 September 1969, for 3 years, and he served as a cook.  

3.  On 6 January 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 1 to 2 December 1969.

4.  He was advanced to pay grade E-2 on 8 January 1970.

5.  A DA Form 8-275-2 (Clinical Record Cover Sheet), dated 11 March 1970, shows he was diagnosed with an acute respiratory disease and a hernia.  He was hospitalized, underwent surgery for a hernia repair, and he was placed on convalescent leave for 30 days.  On 11 March 1970, he was discharged to duty with follow-up in the Surgical Clinic on an outpatient basis.

6.  On 26 May 1970, he underwent a psychiatric evaluation for frequent "nervous breakdowns."  The evaluation stated:

   a.  According to the applicant, his "nervous breakdowns" included shaking, followed by crying, and a desire to get away and be alone.  The applicant stated that the symptoms were always precipitated by his inability to handle responsibilities or carry out his duties.  Each "breakdown" or attack lasted approximately one hour.  That symptom began three years ago.  The only solution was a discharge from the Army or he would go AWOL and/or possibly insane if he was not released from active military duty.

   b.  The examining psychiatric stated he found no evidence of impairment of intellectual functioning.  The applicant did not appear significantly anxious or depressed and there was no evidence of any psychosis.  He deferred his diagnosis and placed the applicant on medication (Valium) with a return to the Mental Hygiene Consultation Division for further evaluation and therapy.

7.  On 31 July 1970, he was again reported AWOL and on 29 August 1970 he was dropped from the rolls of his organization.  He was returned to military control on an unknown date.

8.  A Certificate, dated 30 September 1970, shows the applicant was referred for an evaluation and consideration for elimination from the service under the provisions of Army Regulation 635-212 (Unfitness).  The certificate stated:

   a.  The applicant enlisted in the Army and apparently had approximately
11 months of good time.  During that time, he related that he had "fifteen breakdowns" which consisted of attacks of nervousness and crying during which he was unable to function at the level that was required.  Finally, he stated that he could take it no longer and went AWOL which lasted 50 days.  

   b.  It was unclear what the applicant did during his 50 days of AWOL.  At that time, he maintained that he could not expect himself to function within the Army and only anticipated further "breakdowns."  Since that was the expectation, he desired to be separated from the service.

   c.  The examining psychiatric found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He found the applicant was mentally responsible, able to distinguish rights from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

   d.  The examining psychiatric stated the applicant appeared to be at best functioning on a level consistent with a schizoid personality disorder.  It was possible that his emotional state could deteriorate to the point where psychiatric hospitalization would be required.  Treatment of the applicant would be exhaustive and essentially beyond the scope of treatment the Army could offer.  Since that was the case, it was felt the applicant should be administratively separated from the service. 

9.  On 16 November 1970, he was convicted by the Superior Court of Fulton Country, GA, of one count of aggravated battery and two counts of aggravated assault.

10.  On an unknown date the applicant's company commander notified the applicant of the proposed separation action under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), for conviction by a civil court, with a UD.  The letter advised the applicant of his rights and requested his acknowledgment of the receipt of the letter.

11.  On 16 December 1970, the applicant acknowledged receipt of the notification.  After consulting with counsel, he also acknowledged he understood he could be issued a UD and the results of the issuance of a UD.  He waived his 
rights and elected not to submit a statement in his own behalf.  He also certified that he did not intend to appeal any or all of the convictions which he received on 16 November 1970.

12.  On 6 January 1971, the applicant's company commander recommended the applicant be discharged for a civil conviction.  The company commander stated the applicant was sentenced to 3 years of which 1 year was to be served in confinement and the other 2 years were to be probated.  The applicant clearly qualified for elimination under the provisions of Army Regulation 635-206 for civil conviction and no facts or circumstances indicating that retention was appropriate had been discovered.  

13.  On 11 January 1971, the Post Judge Advocate found the applicant's recommendation for elimination and allied documents in accordance with applicable regulations.  He recommended the applicant's discharge under Army Regulation 635-206.  

14.  On 19 January 1971, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

15.  He was discharged accordingly on 15 March 1971.  He was credited with completing 10 months and 20 days of net active service and he had 228 days of lost time.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate. 

16.  There is no evidence he applied to the Army Discharge Review Board within that board's 15-year statute of limitations for an upgrade of his discharge.

17.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and AWOL or desertion).  The regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or 
(c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  A UD was normally considered appropriate.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

19.  Army Regulation 635-40, in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier was found unfit because of physical disability, that regulation provided for the disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent a psychiatric evaluation on 26 May 1970 for several "nervous breakdowns."  At the time the applicant stated that the only solution was a discharge from Army and that he would go AWOL or insane if he was not discharged.  On 30 September 1970, he underwent a second psychiatric evaluation for separation.  No disqualifying mental or physical defects sufficient to warrant disposition through medical channels were found.  An administrative separation was recommended.  At the time, a UD was normally considered appropriate for separation under Army Regulation 635-212.

2.  Prior to completion of the applicant's separation under Army Regulation    635-212, he was convicted by a civil court and sentenced to three years.  His company commander recommended he be separated for his civil conviction.  He acknowledged receipt of the separation under Army Regulation 635-206 and after consulting with counsel waived his rights and elected not to submit a statement in his own behalf.  He also certified that he did not intend to appeal any or all of his convictions.  The separation authority approved his discharge and directed the issuance of a UD Certificate and reduction to pay grade E-1.  He was discharged accordingly on 15 March 1971.

3.  His contentions were carefully considered and found not to have merit.  The evidence clearly shows his medical condition was acknowledged and he was receiving treatment; however, as no disqualifying mental or physical defects sufficient to warrant disposition through medical channels were found his administrative separation for unfitness was recommended.

4.  After he was convicted by a civil court elimination action under the provisions of Army Regulation 635-206 was properly initiated.  That conviction negated his separation action under any other regulation.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  Had it been determined that he did not meet medical retention standards at the time it was required that he undergo medical processing before a determination of medical discharge or disability could be made.  The evidence does not sufficiently show his medical condition warranted that processing.  In considering the passage of time and his separation under the provisions of Army Regulation 635-206, it appears he was properly discharged for his civil conviction in accordance pertinent regulations with due process. 

6.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  There is no evidence he is entitled to an Army disability rating and/or a medical discharge; therefore, he is not entitled to the 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)                                         AR20130018280



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ABCMR Record of Proceedings (cont)                                         AR20130018280



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