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ARMY | BCMR | CY1997 | 199707715
Original file (199707715.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 4 November 1998
         DOCKET NUMBER: AC97-07715


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell Director
Mr. Kenneth Aucock Analyst


The following members, a quorum, were present:
Mr. James E. Vick Chairperson
Mr. Luther L. Santiful Member
Mr. Thomas D. Kuhn Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether he application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.
         The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:

          Exhibit A - Application for correction of military records
         Exhibit B - Military Personnel Records (including advisory opinion,
         if any)

APPLICANT REQUESTS

 : In effect, the applicant requests that his record reflect that his reduction from Sergeant E-5 to Specialist Four E-4 on 26 February 1985 be declared null and void, and that he receive retroactive pay and allowances in pay grade E-5 up until his discharge on 6 August 1985.
He states that he was reduced to pay grade E-4 because he complained of symptoms of post traumatic stress disorder (PTSD) and personality disorder. Since he was experiencing these symptoms he was not responsible for his actions; consequently, he should not have been reduced, especially in view of the psychologist’s diagnosis and the medication he was receiving. He is still taking this medicine and is receiving a 50 percent service connected disability from the VA. He states that he was reduced because of missing troop movement, that the Army doctors knew he was suffering from a personality disorder and PTSD (He was a Vietnam combat veteran).
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 was inducted into the Army on 27 February 1970, served in Vietnam for one year, and was released from active duty on 8 November 1971 in the grade of E-3. Among others, he was awarded the Purple Heart Medal, the Army Commendation Medal, the Combat Infantryman Badge, the Bronze Star Medal, the Air Medal, and the Good Conduct Medal. He had 1 year, 8 months, and 6 days of service, and 6 days of lost time.

The applicant reenlisted for four years on 13 October 1981, and in March of 1983 was assigned to an infantry unit in Germany. He was promoted to Sergeant E-5 on 2 February 1984.

On 15 August 1984 the applicant received nonjudicial punishment for failure to go to his appointed place of duty.

The applicant was reduced to pay grade E-4 on 26 February 1985. The applicant’s commander directed that the record of nonjudicial punishment be filed in the applicant’s restricted portion of his official file. Information concerning the specific reason for his reduction is not available.

The applicant was AWOL from 13 March until 29 March 1985.

On 21 June 1985 the applicant’s commanding officer notified him that he was being recommended for elimination from the Army under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13. The applicant acknowledged receipt of this notification, waived consulting counsel and waived consideration of his case by a board of officers. He declined to submit statements in his own behalf.

On 22 July 1985 the applicant’s commanding officer recommended that the applicant be eliminated from the Army because of a personality disorder. That official stated that a psychiatric evaluation was submitted with his recommendation. On 25 July 1985 the separation authority approved the recommendation and directed that the applicant be granted an honorable discharge. He was discharged on 6 August 1985 in the pay grade of E-4. The narrative reason for his discharge was “personality disorder.” He had a total of
3 years, 9 months, and 6 days of service during his latest period of service, and 16 days of lost time.


On 17 November 1986, in an unanimous opinion, the Army Discharge Review Board denied the applicant’s request to change the reason for his discharge, i.e., delete “personality disorder” as the narrative reason for his discharge. That board stated that a physical examination had cleared the applicant for separation, that a mental status evaluation had diagnosed the applicant’s condition as PTSD, atypical depressive disorder, passive aggressive personality disorder, and that the Chief of the Department of Psychiatry recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 5, due to a passive aggressive personality disorder.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform. Prior counseling with a view to correcting deficiencies is mandatory.

As its name indicates, nonjudicial punishment is different from a trial by court-martial. A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence. Instead he chose to have the matter settled at nonjudicial punishment.

The Manual for Courts-Martial provides that any commanding officer may impose as punishment under Article 15, UCMJ any one or combination of: Confinement on bread and water or diminished rations for no more than 3 consecutive days (if attached to or embarked on a vessel), correctional custody for no more than
7 consecutive days, forfeiture of 7 days pay, reduction to the next inferior grade if the grade from which demoted is within the promotion authority of the officer
imposing the reduction, extra duty for no more than 14 consecutive days, restriction for no more than 14 consecutive days and detention of no more than 14 days pay. Field grade officers may impose more severe
punishments.

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 6 August 1985, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 6 August 1988.

The application is dated 6 December 1996 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

 JEV LLS TNK CONCUR WITH DETERMINATION




                   Loren G. Harrell
                  Director

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