IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080000296 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to remove his nonjudicial punishment (NJP) from his Official Military Personnel File (OMPF)

2.  The applicant states, in effect, that he received punishment for misconduct over which he had no control because of his medical condition.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214); Chronological Record of Medical Care (SF 600) dated 13 October 2006; and a letter, United States Army Medical Department Activity (MEDDAC), Japan, dated 7 June 2007.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was retired due to a temporary physical disability, in the rank of private, pay grade E-2.

2.  On 4 January 2006, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for indecent language, indecent assault, and for being drunk and disorderly.  The punishment included reduction to pay grade E4 (suspended), a forfeiture of $900.00 pay per month for 2 months (suspended), written reprimand, and 
30 days restriction.  The applicant did not appeal the punishment.

3.  On 8 March 2006, a Record of Supplementary Action under Article 15, UCMJ, provided for the vacation of the suspended punishment imposed on 4 January 2006.

4.  Evidence of record shows that the applicant was further reduced to the grade of E-2 on 13 March 2006.  The documentation authorizing this reduction is not available for review.

5.  On 13 October 2006, the applicant underwent a medical examination.  His chief complaint was that he could not sleep and could not stop thinking.  He was found to be alert, oriented, and cooperative.  His mood was depressed.  He was verbal, thoughtful, coherent, but not pressured.  His thoughts were linear and goal oriented.  He had no looseness of associations, hallucinations, or delusions and no suicidal or homicidal ideation, intent, or plan.  His judgment and insight were intact.  His intelligence was judged to be above average.  He was diagnosed with a bipolar disorder, depressed, alcohol dependence (in remission) and high blood pressure.  His risk assessment was very low.  He was prescribed Lithium Carbonate.  He was released without limitations and was recommended for a medical evaluation board.

6.  In a letter of support for the applicant, dated 7 June 2007, the Mental Health Practitioner, a licensed clinical social worker (LCSW), Behavioral Health Services, United States Army MEDDAC, Japan, wrote that the applicant had been in the care of medical professionals at that agency from October 2005 to February 2006 and had been diagnosed with bi-polar I disorder and was subsequently medically boarded for this illness.  The applicant was reduced on at least two occasions for misconduct.  The specific behaviors in question were consistent with symptoms of bi-polar I disorder; therefore, the punitive action that was taken against the applicant was for impulsive behavior that he could not control.  As a person suffering from a mental illness, the punitive action was inappropriate.  

7.  On 14 March 2007, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Retired) due to a temporary physical disability.  His rank was private, pay grade E-2.  He had completed 7 years, 2 months, and 2 days of creditable active service.

8.  The Manual for Courts-martial provides that a mental condition not amounting to a lack of mental responsibility is not a defense, nor is evidence of such a mental condition admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  
This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.  Lack of mental responsibility is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.

9.  Army Regulation 600-8-104 (Military Personnel Information Management and Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the Official Military Personnel File (OMPF), Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted fiche documents mistakenly filed on the performance or service fiche to the restricted fiche.  Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

2.  The applicant's contention that the NJP was improper based on his mental condition is not substantiated by the available evidence.  He was found to suffer from a bi-polar disorder with a low risk.  He was prescribed lithium Carbonate and released without limitations.  The applicant was not found to lack mental responsibility. 
3.  The letter submitted on behalf of the applicant by the licensed clinical social worker did not show that the applicant lacked the ability to appreciate the nature and quality of his actions that led to the nonjudicial punishment.  At best, this letter, and the applicant's mental health examination, showed that he lacked impulse control, which alone is not sufficient to establish a mental responsibility defense.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
      
      
      
      	__________X_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000296



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ABCMR Record of Proceedings (cont)                                         AR20080000296



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