IN THE CASE OF:
BOARD DATE: 10 February 2011
DOCKET NUMBER: AR20100015555
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, the Article 15 nonjudicial punishments (NJP) imposed on 8 April 1983 and 29 April 1983 be set aside and her rank be restored to private first class/E-3.
2. The applicant states:
* she was ill/sick (bipolar disorder)
* she is 100-percent disabled
* she should have been evaluated by a doctor in the Army instead of having her rank taken away
3. The applicant provides no documentary evidence in support of her application.
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 7 October 1980 for a period of 3 years. She trained as a medical specialist. She was promoted to private first class/E-3 on 7 October 1981.
3. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 8 April 1983, shows NJP was imposed against the applicant for failing to obey two lawful orders and failing to go to her appointed place of duty. Her punishment consisted of a reduction to E-2. She appealed the NJP action; however, her appeal was denied.
4. On 11 April 1983, the applicant was evaluated at the Community Mental Health Service and diagnosed with mixed personality disorder with histrionic and borderline traits. The psychologist determined her potential for retention was poor and there was no evidence of any mental defect or disorder which would substantially impair her ability to conform her behavior to the law. The psychologist's conclusion were reviewed by a psychiatrist.
5. A DA Form 2627, dated 29 April 1983, shows NJP was imposed against the applicant for disobeying a lawful order and failing to go to her appointed place of duty. Her punishment consisted of reduction to E-1 and forfeiture of pay (suspended). She did not appeal the NJP action.
6. On 24 June 1983, the applicant was honorably discharged in the rank of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-13, for personality disorder.
7. There is no evidence of record that shows the applicant was promoted following her NJP.
8. There is no evidence of record which shows the applicant was diagnosed with bipolar disorder prior to her discharge.
9. Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice. It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial. It states the authority to impose NJP charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner. It states the imposing commander is not bound by the formal rules of evidence before courts-martial.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she was sick (bipolar disorder) and she should have been evaluated by a doctor in the Army instead of having her rank taken away. However, the applicant was evaluated by a psychologist on 11 April 1983 and was diagnosed with mixed personality disorder with histrionic and borderline traits. The psychologist determined there was no evidence of any mental defect or disorder which would substantially impair her ability to conform her behavior to the law. His conclusions were approved by a psychiatrist. In addition, there is no evidence of record and the applicant did not provide any evidence which shows she was diagnosed with bipolar disorder prior to or since her discharge on 24 June 1983.
2. There is no evidence the NJPs in question were improperly imposed. It appears to have been the commander's judgment that the applicant's misconduct for each NJP warranted a one-grade reduction as punishment. The Board is reluctant to substitute its judgment for that of the commander.
3. Based on the foregoing, there is insufficient evidence on which to grant the requested relief.
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 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) AR20100015555
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ABCMR Record of Proceedings (cont) AR20100015555
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