BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100015577


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, correction of his records to show he was honorably discharged by reason of physical disability. 

2.  The applicant states:

* He served honorably until he received a hardship discharge
* Many stressful situations caused him to develop the effects of a diagnosed bipolar disorder

3.  The applicant provides:

* A letter from Old Dominion University
* A Letter of Recommendation (LOR) from a member of the Commonwealth of Virginia, House of Delegates
* A letter from the Department of Veterans Affairs (VA), New Jersey Health Care System, Staff Psychiatrist

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.  On 20 April 1985, the applicant enlisted in the U.S. Army Reserve (USAR) for 8 years, in the pay grade of E-1.  He enlisted in the Regular Army (RA) for 4 years on 2 August 1985.

3.  He was released from active duty on 6 October 1986, due to parenthood.  He was transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation.  He reenlisted in the USAR on 19 April 1993.

4.  On 6 June 1994, the applicant was mailed notification that action to separate him from the USAR had been initiated under the provisions of Army Regulation 135-178, for misconduct – abuse of illegal drugs.  His commander cited a 17 April 1994 positive urinalysis result for cocaine use as a basis for his proposed action.

5.  The notification was returned to his unit as unclaimed mail.

6.  On 27 January 1995, Headquarters, USAR Command Orders 95-078-051 were published discharging the applicant from the USAR under other than honorable conditions, under the provisions of Army Regulation 135-178, effective 27 February 1995.  The orders show he was discharged in the rank of Private  (E-1).

7.  The available records fail to reveal that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  The applicant submits a letter from the Old Dominion University Assistant Vice President, who has known the applicant in a variety of capacities for nearly 30 years, attesting to his good character, initiative, leadership, compassion, integrity, and honesty.  

9.  The LOR from the member of the Commonwealth of Virginia House of Delegates, who has known the applicant for over 20 years, attests to his character, moral fiber, and upbringing.  

10.  The letter from the VA Staff Psychiatrist states that the applicant was initially evaluated in August 1995 and seen in April 2007.  The psychiatrist states the applicant has a long history of bipolar disorder and multiple admissions to various VA hospitals since 1993.  He was treated for both manic behavior and depression.  He also has a history of polysubstance abuse which is a frequent co-morbid occurrence with bipolar illness.  His diagnosis includes:

* Bipolar disorder 1
* Cocaine abuse, episodic, in remission
* Alcohol abuse, episodic, in remission
* Coronary artery disease, hypertension, and asthma

11.  Army Regulation 135-178 (Enlisted Administrative Separations) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 7-11c.1 states abuse of illegal drugs is serious misconduct and discharge action normally will be based on commission of a serious offense.  First time drug offenders in the rank of sergeant (E-5) and above will be processed for discharge on discovery of a drug offense.  Soldiers in the grades of E-1 through E-4 must be processed for discharge after a second offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and his supporting letters have been considered.  However, there is no evidence in his official military record that shows he was diagnosed with any mental conditions while he was in the Army.  In addition, he provides contradictory evidence.  The two character reference letters, from individuals who have known the applicant for the past 30/20 years, indicate that whatever mental conditions he may have had did not impact his civilian life at all. They indicate that he was fully mentally competent and indicate that there was no reason for his bipolar disorder to have led to his using illegal drugs, which was the reason for his discharge.

2.  The evidence of record shows he was discharged due to a positive urinalysis result for cocaine use. 

3.  He was discharged in accordance with Army Regulation 135-178 which states that first time drug offenders in the rank of sergeant (E-5) and above will be processed for discharge on discovery of a drug offense.  A discharge under other than honorable conditions is normally appropriate.  He has not shown error or injustice in the type of discharge he received or his narrative reason for separation and is therefore not entitled to 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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100015577



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