IN THE CASE OF:	  

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:  AR20080012809 


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, in effect, that his discharge be changed to a medical retirement.

2.  In a letter to his Member of Congress, and passed on by the Member of Congress to the Board, the applicant requested a personal appearance.

3.  The applicant states that with the correction of his discharge by the Army Discharge Review Board (ADRB), he requests to be formally and medically retired.

4.  The applicant provides his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty); his upgraded discharge certificate; a Department of Veterans Affairs (DVA) Rating Decision, dated 4 April 2006; and a letter, dated    3 October 2006, from the DVA.

5.  The applicant also provides his service medical records and his DVA medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's discharge be changed to a medical retirement.

2.  Counsel states that the applicant was hospitalized in January 1992 and treated for a psychiatric diagnosis of anxiety and depression.  The medical care he received prior to his separation warrants a review.  Additionally, he was diagnosed with adjustment disorder, anxiety, depression, and character disorder.  The applicant, a career Soldier, served for more than 14 years and excelled in his field of Food Service.  The lack of due process and the rush to discredit him destroyed his professional and personal life.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 24 July 1978.  He was promoted to Sergeant First Class, E-7, in military occupational specialty 94B (Food Service Specialist) on 1 March 1990.  

3.  The evidence of record indicates that on 28 April 1991, while in Southwest Asia, the applicant was convicted by a summary court-martial of using indecent language, unlawful touching, and indecent assault.  The sentence is not available.  The applicant's records contain evidence that the applicant had been having disciplinary problems with his female cooks and that he had requested support from the first sergeant and commander but failed to receive support.  There apparently were allegations that the charges may have been the result of he said/she said situations.

4.  On 17 January 1992, the applicant was discharged from a hospital status with diagnoses of adjustment disorder with anxiety and depression and a character disorder.  

5.  On 30 January 1992, a Ph.D. Clinical Psychologist indicated that he advised the applicant's lawyer that the applicant was not competent enough to sign any forms or documents and that he was very stressed out and very depressed.  

6.  On 30 January 1992, the applicant was discharged from a hospital status with diagnoses of anxiety disorder, not otherwise specified, and personality disorder, not otherwise specified.  

7.  The charge sheet is not available.  On an unknown date, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He acknowledged that by submitting the request for discharge that he was guilty of the charge(s) against him or lesser included offenses(s) contained therein which also authorized the imposition of a bad conduct or dishonorable discharge. He was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

8.  On 4 February 1992, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.

9.  On 11 February 1992, the applicant was discharged with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge for the good of the service in lieu of trial by court-martial.  He had completed 13 years, 6 months, and 18 days of creditable active service. 

10.  On 14 September 1998, the ADRB determined that the applicant's discharge was inequitable because the quality of his service did not warrant the granting of a discharge under other than honorable conditions.  It determined that his failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of his discharge to general under honorable conditions.  The ADRB determined that the reason for his discharge was proper and equitable.  

11.  The applicant provided DVA medical records indicating that he had been in outpatient mental health treatment since 1999 for what is diagnosed as bipolar disorder with psychotic features.  An examination, dated 14 March 2006, noted that he was then currently diagnosed with bipolar disorder type mixed, severe and chronic.  



12.  In a letter dated 3 October 2006, the DVA informed the applicant that it had determined he was not competent for DVA purposes (i.e., to handle his own financial affairs).

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states that commanders of medical treatment facilities who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier's ability to perform the duties of his or her office, grade, rank, or rating.

14.  Title 10, U. S. Code, section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

15.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant has been diagnosed with and treated for bipolar disorder since at least 1999.

2.  However, the applicant was separated from the Army in February 1992.  At that time, he had been diagnosed with adjustment disorder with anxiety, depression, and personality disorder.  

3.  There is no evidence of record to show that the applicant could not at any time perform his military duties.  Indeed, counsel for the applicant currently contends that the applicant excelled in his field of Food Service.

4.  It is also acknowledged that in January 1992 a Ph.D. Clinical Psychologist indicated that he advised the applicant's lawyer that the applicant was not competent enough to sign any forms or documents and that he was very 


stressed out and very depressed.  However, there is no other evidence of record (e.g., what tests were performed) to show that the applicant was mentally incompetent or to show that he could not distinguish right from wrong.  

5.  In addition, the Clinical Psychologist could have initiated action to formally evaluate the applicant's mental status.  It does not appear that he felt so strongly about the applicant's mental incompetency to have taken that action.  At this point in time, or even in 1999, when the available evidence shows he was diagnosed with bipolar disorder and seven years after the applicant's separation, it cannot be determined that the applicant was mentally incompetent in 1992.     In fact, it appears the DVA did not determine the applicant to be mentally incompetent until 2006, 14 years after his separation from the Army.

6.  Counsel's contention that the medical care the applicant received prior to his separation warrants a review has been considered; however, this Board's purview is limited to correcting military records.  It is not an investigative agency, especially so when it comes to determining the quality of medical care received years in the past.

7.  Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.  A personal appearance could give evidence of the applicant's current mental state; however, it would shed no additional light on his mental status at the time of his separation from the Army in 1992.

8.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

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.




      _______ _xxx   _______   ___
               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)                                         AR20080012809





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ABCMR Record of Proceedings (cont)                                         AR20080012809



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