APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. He states that his general discharge was a result of misconduct brought on by hereditary illness known as maniac-depressive psychosis.
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 entered the Army on 11 February 1986, completed training and was assigned to Fort Stewart, Georgia.
On 19 February 1987 the applicant received nonjudicial punishment under Article 15, UCMJ, for disrespect toward an NCO. On 6 July 1997 the applicant received nonjudicial punishment for being drunk on duty and for striking another soldier.
On 24 July 1987 the applicant received a bar to reenlistment based on his conduct and performance of duty.
A 26 August 1987 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. The applicant stated that he was in good health.
A 27 August 1987 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical requirements for retention in the Army. The applicant was cleared for any administrative action deemed appropriate.
On 24 September 1987 the applicants commanding officer initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200, chapter 14.
The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effects, and the rights available to him. He stated that he understood the nature and consequences of the other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.
The applicants commanding officer recommended to the separation authority that the applicant be separated from the Army because of acts or patterns of misconduct, and that he receive a general discharge. On 30 September 1987 the separation authority approved the recommendation. The applicant was discharged at Fort Stewart on 14 October 1987. He had 1 year, 8 months, and 4 days of service.
On 27 April 1989 the Army Discharge Review Board, in an unanimous opinion, denied the applicants request to upgrade his discharge.
On 8 February 1995 the VA denied the applicants claim for service connected disability for bipolar disorder/manic depression, schizophrenia; and granuloma, left upper lung.
An administrative information form from the La Casa (California) Mental Health Center indicates that the applicant was admitted to that center on 3 August 1995 and discharged on 8 August, with a primary diagnosis of bipolar disorder mixed with psychotic features.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldiers overall record.
Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.
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
14 October 1987, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 October 1990.
The application is dated 29 September 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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