MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 07 AUGUST 2001
         DOCKET NUMBER: AR2001056145


         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. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Thomas B. Redfern III		Member
Ms. Regan K. Smith		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 the 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)

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APPLICANT REQUESTS: The applicant does not state what he wants; however, the medical records that he submits with his application suggests that he is requesting either physical disability retirement or separation. He may also be requesting that his bad conduct discharge be upgraded to either a general or honorable discharge.

He states that he realizes that on 14 November 2000 he would have retired with 20 years of service, if he had received counseling, medication, and treatment for his chemical imbalance. He served for three years, 70 percent of which was spent on restriction and extra duties.

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 for three years on 20 January 1981. He completed training as an infantryman and in May 1981 was assigned to an infantry battalion in Hawaii.

Documents indicate that the applicant was enrolled in an alcohol and drug program (ADAPCP) in October 1981 for improper use of cannabis, and that he satisfactorily completed the program in February 1982.

Before a special court-martial which convened at Schofield Barracks in Hawaii on 20 January 1984, the applicant was arraigned, tried, and convicted of theft of government property and wrongful possession of marijuana. He was sentenced to be confined at hard labor for three months, forfeiture of $397.00 pay per month for three months; reduction to pay grade E-1; and to be discharged from the Army with a bad conduct discharge. The convening authority approved the sentence on 11 March 1984. The applicant was transferred to the Army Correctional Activity at Fort Riley, Kansas for confinement. He was released from confinement on 4 April 1984 upon completion of his sentence.

On 11 May 1984 the Army Court of Military Review affirmed the findings of guilty and the sentence. On 15 August 1984 the sentence was ordered to be duly executed. That portion of the sentence pertaining to confinement had been served. The applicant was discharged on 13 September 1984 with a bad conduct discharge. He had 3 years, 5 months, and 13 days of service. He had 71 days of lost time.

A 27 September 1984 medical report indicates that the applicant was brought [to a hospital] on an emergency order of detention and later stayed on a 90 day commitment. When he came, he claimed that he was a friend of God and was there to set free all the people in the jail. He was married and lived with his wife. He became physically abusive, aggressive, hostile, combative, inappropriate, and threatened to strangle her [his wife], and also preached God’s word. He was having a flight of ideas and euphoria. He was overly psychotic. The applicant’s condition was diagnosed as manic depressive illness, bipolar type.

Medical reports and progress reports in 1985 and 1986 show that the applicant was taking medication, had stated that he had been at two mental hospitals and in jail while in Corpus, and was presently taking Lithium. Those reports continued through February 1987, showing up and down progress.

A 25 April 1989 psychiatric evaluation/treatment plan from the Tropical Texas Center for Mental Health and Mental Retardation indicates that the applicant’s condition was diagnosed as alcohol abuse in remission, cannabis abuse which continued intermittently, and mixed substance abuse which the applicant stated was in remission; personality disorder with narcissistic and antisocial traits; and severe marital discord and stress on the job. The examining physician stated that he was unable to give the applicant a diagnosis of affective disorder or any of the thought disorder diagnoses. He also stated that he was not convinced that the applicant should still be given a diagnosis of bipolar disorder at that time.

A 24 May 1990 medical report indicates that the applicant’s condition was diagnosed as bipolar disorder, mixed psychoactive substance abuse, and antisocial personality disorder. A 2 November 1990 medical report shows a diagnosis of bipolar disorder. A 4 June 1992 medical report indicates a diagnosis of bipolar manic illness. A 25 June 1992 report shows an assessment of bipolar disorder, hypomanic, probably, and also antisocial personality disorder.

Medical reports in 1993, 1994, 1995, and 1996 show that he was being treated for his medical condition. A 13 August 1996 medical report shows that the applicant was admitted to a hospital because he had been drinking, was depressed, and had been talking about suicide. His condition upon his discharge from the hospital was diagnosed as bipolar disorder, depressive type, and alcohol dependence.

A 29 December 1997 also shows that the applicant was admitted to a hospital on 8 December 1997 and discharged on 29 December 1997 because of the resolution of his manic episodes. His condition upon discharge was described as bipolar disorder mixed, severe with psychotic features; polysubstance abuse; borderline personality disorder; and HIV risk. An 18 February 1998 medical report shows a similar diagnosis.

Army Regulation 635-200 provides for the discharge of enlisted soldiers. Paragraph 3-11 states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

Army Regulation 635-40 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 provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge was in error or that an injustice had been done to him, and as such there is no basis to correct his record to upgrade his discharge or to grant him a physical disability retirement or discharge.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 September 1984, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 13 September 1987.

The application is dated 5 April 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__MKP__ __TBR __ __RKS __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001056145
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010807
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	142.00
2.	110.00
3.	108.00
4.	189
5.
6.