APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. The applicant states that it was obvious that his condition was psychosis at the time of his discharge; maniac depression (schizophrenia) was clearly indicated.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Army on 8 February 1977, completed training and in May 1977 was assigned to an artillery unit in Germany.
On 21 March 1978 the applicant was mandatorily referred to the community drug and alcohol assistance center in Hanau, Germany for abuse of alcohol and hashish. He was counseled on 9 occasions from 23 March to 23 May 1978. A progress report of 24 May 1978 indicates that the applicants ambivalence, and lack of insight into his problems, his tendency to blame others for his troubles, deterioration of duty performance, continued involvement with drug and alcohol related incidents warranted separation from the Army. Both commander and counselor concurred. The applicant was declared a rehabilitation failure.
On 6 June 1978 the applicants commanding officer initiated action to discharge the applicant under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse. The applicant acknowledged notification of this action, waived his right to consult with counsel, and declined to submit a statement in his own behalf. The applicants commanding officer then recommended his discharge, noting that the applicant had been counseled by unit officers and NCO on five occasions.
A 12 June 1978 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile of 1 1 1 1 1 1. A report of mental status evaluation of that same date indicates that the applicant had no significant mental illness, he was mentally responsible and able to distinguish right from wrong and adhere to the right. The applicant had the mental capacity to understand and participate in board proceedings and he met the medical standards for retention in the Army.
The separation authority approved the recommendation and directed that the applicant receive an Honorable Discharge Certificate. The applicant was discharged on 29 June 1978 at Fort Dix, New Jersey. He had 1 year, 4 months, and
22 days of service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 9-2 of that regulation states, in effect, that a soldier enrolled in the alcohol and drug abuse prevention and control program may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Paragraph 9-4 of the aforementioned regulation states that the service of soldiers discharged will be characterized as honorable or under honorable conditions.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
29 June 1978, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 June 1981.
The application is dated 17 February 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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