APPLICANT REQUESTS: That his records be corrected to show that he was medically discharged. He states that he did well when he first entered on active duty, resulting in his accelerated promotion to pay grade E-4 and his being given a letter of commendation. He then began experiencing mood swings and was diagnosed as having a bi-polar disorder. While he was being processed for a medical discharge his mood swings worsened, resulting in his getting into trouble and losing his rank. Since his discharge he has spent most of his time living on the streets and has been hospitalized over 12 times. In support of his application he submits the letter of commendation he references.
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 personnel and medical records show:
He enlisted in the Regular Army on 31 October 1979 for 4 years in pay grade E-1 with prior service in the USAR. He performed duties as a medical specialist and was promoted to pay grade E-4.
He accepted nonjudicial punishment under Article 15, UCMJ, on two occasions: once on 11 March 1980 for possession of marijuana and once on 8 December 1980 for failure to go at the time prescribed to his appointed place of duty, for disobeying a lawful order, for disobeying a lawful command, for being disrespectful to a commissioned officer, for absenting himself from his unit for 4 days, and for being disorderly in a public place.
He was given a psychiatric evaluation on 19 May 1980. The psychiatrist found him to have a personality disorder caused by deficiencies in his emotional and personality development. The psychiatrist opined that the applicant used poor judgment, was not committed to productive goals, and was not motivated. However, the psychiatrist determined that the applicant did not suffer from any mental disease, defect, or derangement sufficient to warrant disposition through medical channels.
On 17 December 1980 the applicants commander notified him of his intent to recommend him for discharge by reason of unsuitability and of his rights in conjunction with that recommendation. The applicant chose to waive his rights.
Accordingly, on 5 February 1981 the applicant was honorably discharged due to unsuitability, personality disorders. He had 1 year, 3 months and 2 days of creditable service and 3 days of lost time.
Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unsuitability of personnel diagnosed as having personality disorders. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.
There is no evidence in the applicants record that he was ever diagnosed as having a bi-polar disorder.
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 5 February 1981, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 5 February 1984.
The application is dated 23 May 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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