DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-055 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This proceeding was conducted under the provisions of section 1552 of title 10 
and section 425 of title 14 of the United States Code.  The Chair docketed the application 
on  February  17,  2006,  upon  receipt  of  the  applicant’s  completed  application,  military 
records, medical records, and Record of Trial. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated October 19, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant asked the Board to upgrade his bad conduct discharge by sentence 
of  a  special  court-martial  to  an  honorable  discharge  by  reason  of  physical  disability.  
The applicant alleged that when he committed the crime for which he was tried, he was 
suffering from mania and psychosis as a result of his bipolar disorder.1  He alleged that 

                                                 
1      Bipolar  disorder  is  a  mood  disorder  characterized  by  recurrent  depressive  episodes  and  manic  epi-
sodes and sometimes by psychotic  or catatonic features. American  Psychiatric Association, DIAGNOSTIC 
AND  STATISTICAL  MANUAL  OF  MENTAL  DISORDERS,  FOURTH  EDITION,  TEXT  REVISION  (2000)  (DSM-IV-TR), 
p. 382  et  seq.    The  Coast  Guard  relies  on  the  DSM  when  diagnosing  psychiatric  conditions.  See  Coast 
Guard Medical Manual (COMDTINST M6000.1B), Chap. 5.B.1.  The average age at onset is 20.  DSM-IV-
TR, at 386.  Truancy and occupational failure are common features of the disorder.  Id. at 394.  Paranoia, 
grandiosity, distractability, sleep disturbance, non-stop talking, poor judgment, and irritability are some 
of the common symptoms of bipolar disorder.  Eugene Braunwald et al., eds., HARRISON’S PRINCIPLES OF 
INTERNAL MEDICINE, 15TH EDITION (McGraw-Hill, 2001), p. 2551.  Under Chapter 5 of the Medical Manual, 
bipolar disorders constitute physical disabilities disqualifying for military service. 

it  is  unjust  for  him  to  have  been  convicted  by  court-martial  since,  but  for  his  bipolar 
disorder, he would never have gone AWOL and consumed illegal drugs in September 
2002.  The applicant alleged that his medical records show that he was already bipolar 
at the time he went AWOL.  He alleged that the Coast Guard’s diagnosis of a simple 
adjustment  disorder2  did  not  take  into  account  the  auditory  hallucinations  and  other 
symptoms he was experiencing. 
 
 
In  support  of  his  allegation,  the  applicant  submitted  a  copy  of  a  psychiatric 
evaluation dated November 3, 2003.  He had been admitted to a hospital complaining of 
hearing voices and thinking that he was going to be killed.  The psychiatrist noted that 
the applicant had suffered from depression since he was a teenager and diagnosed him 
with recurrent major depression with psychosis, polysubstance abuse, and a personality 
disorder not otherwise specified.  In addition, the psychiatrist noted that schizophrenia 
and bipolar disorder were possibilities that needed to be ruled out.  A psychologist later 
diagnosed the applicant with bipolar disorder.  In December 2003, the psychiatrist pre-
scribed lithium for him for bipolar disorder, as well as an anti-psychotic medication. 
 

The applicant also submitted a copy of a letter from the Social Security Adminis-
tration, dated July 5, 2004, which states that under the rules of that administration, he 
had become disabled on March 16, 2003.  
  

SUMMARY OF THE APPLICANT’S RECORD 

 
On October 22, 2001, at the age of 20, the applicant enlisted in the Coast Guard.  
 
During his pre-enlistment physical examination, the applicant denied having ever been 
diagnosed with an attention deficit or hyperactivity disorder, depression, or excessive 
worry; having ever been evaluated or treated for a mental condition; and having ever 
attempted  suicide.    He  admitted  that  he  had  been  treated  for  alcohol  abuse  at  age  17 
and that he had previously used marijuana and methamphetamines.  Upon enlistment, 
he was advised of the Coast Guard’s drug policy. 
 

During  boot  camp,  the  applicant  admitted  that  he  had  previously  been  diag-
nosed with an attention deficit disorder.  However, he was allowed to complete boot 
camp  and  began  “A”  School  to  become  a  storekeeper.   On  January  23,  2002,  while  in 
“A” School, the applicant was counseled in writing about failing to pay debts.  On Feb-
ruary 7, 2002, the applicant was suspended from “A” School after having been charged 
with  violating  Article  92  of  the  Uniform  Code  of  Military  Justice  (UCMJ).    He  was 
                                                 
2 Adjustment disorders are defined as psychological responses to identifiable stressors that result in the 
development  of  clinically  significant  emotional  or  behavioral  symptoms,  including  either  “marked 
distress  that  is  in  excess  of  what  would  be  expected  given  the  nature  of  the  stressor  or  …  significant 
impairment in social or occupational (academic) functioning.”  DSM-IV-TR, p. 679.  Adjustment disorders 
disappear when the stressors disappear.  Id.  Adjustment disorders are not considered physical disabili-
ties.  Medical Manual, Chap. 5. 

accused of disobeying a lawful order on January 30, 2002, by engaging in sexual activity 
with another student in her barracks with the door closed and then, after her roommate 
returned, in the roommate’s presence. 
 
 
On February 4, 2002, the applicant was referred for a psychiatric evaluation due 
to  his  poor  performance  at  “A”  School.    He  admitted  that  as  a  teenager  he  had  been 
treated with Ritalin and Wellbutrin. 
 
 
On February 19, 2002, the applicant was counseled about being absent without 
leave (AWOL) on February 15, 2002.  He had not reported to his assigned work place.  
The  Page  7  (counseling  entry)  states  that  it “is  a  final  warning  and  that this  behavior 
will not be tolerated by any supervisor.” 
 
On  March  7,  2002,  the  applicant  was  taken  to  mast  and  disenrolled  from  “A” 
 
School for having disobeyed a lawful order on January 30, 2002.  He was transferred to 
a cutter as a seaman apprentice.  
 
 
On  July  18,  2002,  the  cutter’s  log  indicates  that  “all  hands  [were]  present  or 
accounted for with the exception of [the applicant].”  A chief petty officer signed a state-
ment saying that he had called the applicant’s wife and family but no one had seen him.  
Late in the morning of July 19, 2002, the applicant called the chief petty officer and said 
that  his  marriage  was  troubled,  that  he  wanted  out  of  the  Coast  Guard,  and  that  he 
needed to get away.  Because the applicant seemed upset, the chief petty officer asked 
him if he was suicidal.  The applicant denied being suicidal.  The chief petty officer told 
him to report to the cutter or the nearest Coast Guard unit as soon as possible.  
 

On July 24, 2002, while still AWOL, the applicant called the local police.  He was 
drunk and threatened to kill himself.  The police returned the applicant to the cutter.  
The applicant told his command that he had been trying to stay drunk all the time he 
was away and did not want to return to the cutter.  He was immediately sent to a hos-
pital  because  of  his  “suicide-related  comments.”    Upon  admission  to  the  hospital,  a 
pyschologist  noted  that  the  applicant  was  agitated  and  had  “persecutory”  delusions.  
He also noted with a question mark, “?”, on a form that the applicant might be expe-
riencing auditory hallucinations because he complained of hearing names being called.  
The psychologist further noted that the applicant had poor judgment and insight.  He 
provisionally diagnosed the applicant with  major depression and  alcohol dependence 
and noted that bipolar disorder was a possibility that needed to be ruled out.  He fur-
ther noted that the applicant admitted to having intentionally overdosed on ibuprofen 
at age 12 and on Ritalin at age 14. 

 
On July 25, 2002, a doctor reported that during an interview the applicant was 
“alert,  cooperative,  talkative”;  that  he  made  appropriate  eye  contract  and  appeared 
relaxed; that his affect was inconsistent and “not congruent with [his] mood”; and that 

he claimed to know people’s hidden agendas and what they were thinking, which was 
contrary to what they were saying.  The doctor also noted that the applicant “occasion-
ally hear[d] name being called and sound of a radio playing.”  The doctor diagnosed the 
applicant  with  an  adjustment  disorder  with  depressed  mood;  a  personality  disorder, 
not  otherwise  specified,  with  narcissistic  and  antisocial  personality  traits;  and  alcohol 
abuse.    The  next  day,  the  applicant  reported  that  he  was  feeling  less  depressed  and 
anxious and had no hallucinations or suicidal ideations.   

 
Medical notes state that the applicant had a depressed mood and suicidal idea-
tions “caused by difficulty with adjustment to military authority and lifestyle.”  He had 
been  raised  by  a  violent,  abusive  stepfather  who  sold  illegal  drugs;  his  father  was 
schizophrenic and had been incarcerated; and his uncle was incarcerated.  The applicant 
was treated with Celexa for mood stabilization and with Ativan to improve his sleep, 
which was sometimes disturbed.  The applicant reported a history of “mania including 
excessive spending, heightened mood, grandiose thoughts lasting for several days, fol-
lowed by ‘crashing’ from complete exhaustion,” but admitted that he had been using 
stimulants at the time.   

 
Upon the applicant’s discharge from the hospital on July 30, 2002, Dr. N, a psy-
chiatrist, diagnosed him with an Adjustment Disorder with Depressed Mood, as well as 
a  Personality  Disorder,  Not  Otherwise  Specified,  but  with  Cluster  B  Traits.3    Dr.  N 
reported  that  the  applicant  had  no  mental  disease,  defect,  or  derangement  and  was 
“capable of distinguishing right from wrong and adhering to the right.  He is responsi-
ble for his actions and possesses the mental and emotional capacity to understand and 
participate in board and other legal proceedings.”  Dr. N reported that the diagnosed 
disorders “are sufficiently severe that this seaman’s ability to function effectively in the 
military environment is significantly impaired.”  He opined that retaining the applicant 
on active duty “could cause further deterioration and result in hospitalization, suicide 
gestures  or  attempts,  or  other  undesirable  behaviors.”    Dr.  N  recommended  that  the 
applicant be placed in a stress-free environment while his discharge was pending. 
 
 
On July 31, 2002, the applicant was taken to mast for having been absent without 
leave (AWOL) from July 18 to 24, 2002.  The Executive Officer of the cutter dismissed 
the charge because the applicant was “under emotional stress as outlined by psychiatric 
evaluation.”  However, the Executive Officer counseled the applicant in writing that  
 
                                                 
3 A personality disorder is “an enduring pattern of inner experience and behavior that deviates markedly 
from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence 
or early adulthood, is stable over time, and leads to distress or impairment.” DSM-IV-TR, p. 685.  Cluster 
A  personality  disorders  include  paranoid,  schizoid,  and  schizotypal.    Cluster  B  disorders  include 
antisocial, borderline, histrionic, and narcissistic.  Cluster C disorders include avoidant, dependent, and 
obsessive-compulsive.  People with Cluster B disorders “often appear dramatic, emotional, or erratic.”  Id. 
at 685-86.  Personality disorders are not considered physical disabilities.  Medical Manual, Chap. 5. 

[y]our recent unauthorized absence from 18-24 July 02 is unacceptable and is a clear viola-
tion of the UCMJ.  Although you were under severe emotional stress from marital difficul-
ties, there is simply no excuse for such behavior. … [T]he psychiatric evaluation conducted 
at Madigan Army Medical Center … states you had been experiencing depression for sev-
eral months prior to this incident, but had not been properly treated.  However, the evalu-
ation also states that you are “capable of distinguishing right from wrong and adhering to 
the right.”  Now that you understand your psychological condition, it is your responsibil-
ity  to  follow  the  treatment  plan  prescribed,  and  request  assistance  as  appropriate.    Any 
future violations of the UCMJ, regardless of the circumstances, will not be tolerated, and 
most  certainly  will  result  in  the  forwarding  of  such  charges  to  be  disposed  of  at  either 
Captain’s Mast or be referred for trial by Court-Martial. 

On August 19, 2002, the applicant was treated for “public drunkenness/blacking 

 
 
On  August  1,  2002,  the  applicant’s  commanding  officer  (CO)  informed  him  in 
writing that he was initiating the applicant’s honorable discharge  due to a diagnosed 
personality disorder.  The CO advised the applicant that he could submit a statement on 
his own behalf.  In response, the applicant signed a document indicating that he waived 
his right to submit a statement and did not object to being discharged. 
 
 
On  August  8,  2002,  the  CO  recommended  to  the  Coast  Guard  Personnel  Com-
 
mand (CGPC) that the applicant receive an honorable discharge for unsuitability based 
on the diagnosed personality disorder, as well as “general inaptitude and financial irre-
sponsibility.”  The CO noted that on July 17, 2002, upon returning from a deployment, 
the  applicant  had  discovered  that  his  wife  had  left  him,  and  that  her  departure  had 
apparently triggered his going AWOL and threatening suicide.   
 
 
out” after he was arrested by the police. 
 
 
On September 6, 2002, CGPC ordered that the applicant be honorably discharged 
no  later  than  October  4,  2002,  by  reason  of  “Personality  Disorder,”  if  no  disciplinary 
action was pending. 
 
 
On Monday, September 16, 2002, the applicant failed to report for duty and was 
therefore AWOL.  On September 17, 2002, he called his command and admitted to ille-
gal drug use with another member.  He stated that the other member had jumped off a 
balcony and was not breathing.  He was unable to tell the command where they were.  
The applicant and the other member returned to the unit the next day.  The applicant 
was  sent  for  a  psychological  evaluation.    He  reported  that  he  had  started  “popping 
pills,” after which he was “out of it,” “happy,” “racing,” having hallucinations, and not 
sleeping and that he had thought about killing the other member who was “tripping” 
with him.  The psychologist, Dr. P, reported that the applicant had no delusions or hal-
lucinations other than “traces of light” that were the “lingering effects of drugs.”  He 
also reported that the applicant intended to continue using drugs despite the probable 
consequences.  Dr. P assessed the applicant as having a “long history of polysubstance 
abuse”  and  probably  an  antisocial  personality  disorder.    Urinalysis  revealed  that  the 

applicant  had  used  ecstasy  and  methamphetamine.    The  applicant’s  command  asked 
CGPC  to  hold  the  discharge  orders  in  abeyance  because  disciplinary  action  was 
pending. 
 
 
On December 10, 2002, the applicant was formally charged with violating Article 
86 of the UCMJ by being AWOL from September 16 to 17, 2002, and with violating Arti-
cle 112a by wrongfully using a controlled substance.  He was also charged with wrong-
ful distribution of a controlled substance in violation of Article 112a.   
 
 
On  February  5,  2003,  the  applicant  complained  of  having  mood  swings  and 
asked for a mental health evaluation.  On February 10, 2003, his defense attorney asked 
that he be examined to determine his mental responsibility at the time of the offenses 
and his competency to stand trial.  The attorney stated that the applicant had told him 
that on September 14, 2002, he had tried to commit suicide by ingesting both drugs and 
alcohol.   
 
 
On February 12, 2003, the lieutenant serving as trial counsel informed the mili-
tary judge that the questions concerning the applicant’s mental condition at the time of 
the offense had been addressed in a conference call between himself, the defense attor-
ney, Dr. N, and Dr. P.  Dr. P had stated that in his medical opinion, the applicant “did 
not have a severe mental disease or defect at the time of the alleged criminal conduct” 
and “was able to appreciate the nature and quality or the wrongfulness of his conduct.”  
Dr. N agreed with Dr. P’s opinion based on his observation of the applicant from July 
24 to 30, 2002.  On the basis of these opinions, the defense attorney agreed and acknowl-
edged by his signature that a formal examination by a Board of Medical Officers was 
not warranted. 
 
 
At a special court-martial on February 13, 2003, the applicant pled guilty to vio-
lating Article 86 and Article 112a of the UCMJ.  He admitted that he had bought illegal 
drugs on September 14, 2002; had ingested them with a fellow member; and had been 
AWOL from September 16 to 17, 2002.  Pursuant to a plea agreement, the specification 
for distributing a controlled substance was dismissed.  He was sentenced to a bad con-
duct  discharge.    The  applicant  was  placed  on  appellate  leave  while  his  appeal  was 
pending. 
 
 
On  May  5,  2003,  the  applicant’s  defense  attorney  requested  clemency  on  the 
sentence on the basis of the applicant’s difficult childhood, his cooperation in admitting 
that he had used illegal drugs and in pleading guilty, and his regret for his mistakes.  
On June 10, 2003, the convening authority approved the sentence. 
 
On  October  7,  2003,  the  Coast  Guard  Court  of  Criminal  Appeals  affirmed  the 
 
applicant’s conviction and sentence.  On April 20, 2004, the Commandant of the Coast 

Guard denied clemency.  On June 4, 2004, the Officer Exercising General Court-Martial 
Jurisdiction ordered that the sentence be executed.  
 
 
sentence of the court martial. 
 

On July 16, 2004, the applicant received a bad conduct discharge pursuant to the 

VIEWS OF THE COAST GUARD 

 
 
On  May  19,  2002,  the  Judge  Advocate  General  (JAG)  submitted  an  advisory 
opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he adopted the facts and analysis provided by CGPC in an attached memorandum.  
 
 
CGPC stated that the applicant “was provided due process and represented by 
legal counsel during his court martial proceedings.”  CGPC stated that his “contention 
that his mental health status was not considered during the course of the trial proceed-
ings was inaccurate” since his defense attorney clearly concurred that at the time of the 
offense and at the time of the trial the applicant did not lack mental responsibility due 
to a severe mental disease or defect.  CGPC noted that the applicant’s medical record 
was included in the Record of Trial. 
 
 
CGPC alleged that “[t]here is no support for the applicant’s assertion that he suf-
fered from bipolar disorder at the time of his offense” because he had been diagnosed 
by competent medical authority with only an adjustment disorder and personality dis-
order.  CGPC stated that the applicant’s post-trial mental health conditions and treat-
ments “do not substantiate any injustice or omission in [his] court martial and subse-
quent punitive discharge.”  

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 6, 2006, the applicant responded to the views of the Coast Guard.  He 
argued that the fact that he was suffering from bipolar disorder in September 2002 is 
proved  by  the  fact  that  during  his  hospitalization  in  July  2002,  he  “reported  hearing 
voices and hearing the radio playing when there was no source, and was demonstrating 
delusional grandiosity when he stated that his mother ran a mental health clinic.”  The 
applicant stated that his illness is also proved by his reported symptoms of mania and 
rapid speech.  The applicant stated that when he returned home after his trial, he admit-
ted to his mother that he “had been having psychotic symptoms from early adolescence 
and was keeping them hidden.” 
 

APPLICABLE LAW 

 

Under 10 U.S.C. § 1552(f)(2), the BCMR may not overturn a conviction by court 
martial but may take “action on the sentence of a court-martial for purposes of clem-
ency.” 
 
Rule  706  of  the  Rules  for  Courts-Martial  provides  that,  if  an  accused’s  mental 
capacity or responsibility is called into question, the convening authority may order a 
mental  examination  by  a  board  of  one  or  more  physicians  to  determine  the  mental 
capacity and mental responsibility of the accused.  The board’s findings are to include 
the accused’s diagnosis at the time of the crime, whether he lacked substantial capacity 
to appreciate the criminality of the conduct, whether he lacked substantial capacity to 
conform his conduct to the requirements of law, and whether he had sufficient mental 
capacity to understand the nature of the proceedings and to assist in his defense.  The 
mental capacity of a person to stand trial is ultimately decided by the military judge.  If 
the military judge determines that the member lacks the mental capacity to stand trial, 
the  member  may  be  administratively  discharged  because  of  the  mental  disability.  See 
Rules 801(e) and 909 (Discussion). 
 
 
current Disability Evaluation and Disciplinary Action,” states the following: 
 

Article 12.B.1.e.1. of the Personnel Manual, under the title “Cases Involving Con-

Disability  statutes  do  not  preclude  disciplinary  separation.  The  separations  described 
here supersede disability separation or retirement.  If Commander, (CGPC-adm) is proc-
essing  a  member  for  disability  while  simultaneously  Commander,  (CGPC-epm-1)  is 
evaluating  him  or  her  for  an  involuntary  administrative  separation  for  misconduct  or 
disciplinary proceedings which could result in a punitive discharge or an unsuspended 
punitive discharge is pending, Commander, (CGPC-adm) suspends the disability evalu-
ation  and  Commander,  (CGPC-epm-1)  considers  the  disciplinary  action.    If  the  action 
taken does not include punitive or administrative discharge for misconduct, Command-
er, (CGPC-adm) sends or returns the case to Commander, (CGPC-adm) for processing.  If 
the  action  includes  either  a  punitive  or  administrative  discharge  for  misconduct,  the 

medical board report  shall be filed  in  the  terminated member's medical personnel data 
record (MED PDR). 

 
 
the following: 

Article 2.C.11. of the Physical Disability Evaluation System (PDES) Manual states 

 
a.    Disability  statutes  do  not  preclude  disciplinary  or  administrative  separation  under 
applicable portions of the Personnel Manual, COMDTINST M100.6 (series).  If a member 
is being processed for a disability retirement or separation, and proceedings to adminis-
tratively  separate  the  member  for  misconduct,  disciplinary  proceedings  which  could 
result in a punitive discharge of the member, or an unsuspended punitive discharge of 
the member is pending, final action on the disability evaluation proceedings will be sus-
pended, and the non-disability action monitored by [CGPC]. ... 
 
b.    If  the  court  martial  or  administrative  process  does  not  result  in  the  execution  of  a 
punitive or an administrative discharge, the disability evaluation process will resume.  If 
a punitive or administrative discharge is executed, the disability evaluation case will be 
closed and the proceedings filed in the member’s official medical record. 

FINDINGS AND CONCLUSIONS 

 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

§ 1552.  The application was timely. 
 

2. 

The Board begins deliberation of each application by presuming adminis-
trative regularity on the part of the Coast Guard.4  Government officials, including the 
doctors who examined and diagnosed the applicant for the Coast Guard, are presumed 
to have acted “correctly, lawfully, and in good faith.”5  The applicant must overcome 
this presumption and prove by a preponderance of the evidence that his bad conduct 
discharge  was  erroneous  or  unjust  and  requires  correction.    “[T]he  Secretary  and  his 
boards have an abiding moral sanction to determine insofar as possible, the true nature 
of an alleged injustice and to take steps to grant thorough and fitting relief.”6 

 
3. 

The applicant argued that when he went AWOL and ingested ecstasy and 
methamphetamine in September 2002, he suffered from bipolar disorder and so should 
not be held liable for his crimes.  He alleged that the fact that some of the symptoms he 

                                                 
4 33 C.F.R. § 52.24(b). 
5  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. 
Cl. 1979). 
6  Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959). 

had reported in July 2002 are common symptoms of bipolar disorder and the fact that 
he was diagnosed with bipolar disorder in late 2003 prove that he was suffering from 
bipolar disorder in September 2002.  Upon admission to the hospital on July 24, 2002, a 
psychologist  interviewed  the  applicant  and  noted  that  the  applicant  might  be  having 
auditory hallucinations and that bipolar disorder was a possible diagnosis that needed 
to  be  “ruled  out.”    However,  while  in  the  hospital,  the  applicant  admitted  that  his 
symptoms occurred when he was using “stimulants.”  Upon the applicant’s discharge 
from the hospital on July 30, 2002, Dr. N diagnosed him not with bipolar disorder but 
with  an  adjustment  disorder  and  a  personality  disorder  with  antisocial,  borderline, 
histrionic, and narcissistic traits.  Dr. P, the psychologist who interviewed the applicant 
in  September  2002  and  who  had  access  to  his  medical  records,  made  a  provisional 
diagnosis  of  antisocial  personality  disorder.    The  Board  also  notes  that  in  2002,  the 
applicant already had a long history of polysubstance abuse, which sometimes induces 
the  symptoms  of  a  mood  disorder.7    Therefore,  the  Board  finds  that  even  though  the 
applicant had experienced some symptoms common to bipolar disorder and was later 
diagnosed with bipolar disorder, he has not proved by a preponderance of the evidence 
that he was suffering from bipolar disorder when he went AWOL and ingested ecstasy 
and methamphetamine in September 2002. 

 
4. 

The Board notes that the applicant claimed that he had suffered psychotic 
symptoms  since  early  adolescence.    The  record  indicates  that  the  applicant  claimed 
upon  his  pre-enlistment  physical  examination  that  he  had  never  been  evaluated  or 
treated for any attention deficit disorder or mental condition and had never attempted 
suicide, but later admitted to having been treated for an attention deficit disorder and to 
having intentionally overdosed on medication twice.   

 
5. 

Moreover, the  existence  of  a  mental  illness  per  se  does  not  automatically 
excuse a member from liability for any crimes committed.  Instead, the deciding factors 
are whether the member lacked substantial capacity to appreciate the criminality of his 
conduct  and  whether  he  lacked  substantial  capacity  to  conform  his  conduct  to  the 
requirements of law.8  Dr. P reported to the applicant’s attorney on February 12, 2003, 
that the applicant did not lack substantial capacity to appreciate the criminality of his 
conduct or to conform his conduct to the requirements of law in September 2002.  Dr. N 
reported on July 30, 2002, that the applicant was “capable of distinguishing right from 
wrong and adhering to the right” and agreed with Dr. P’s assessment on February 12, 
2003.  On the basis of their medical opinions, the applicant’s attorney did not pursue a 
determination by a formal sanity board.  The applicant has not proved that Dr. P and 
Dr. N erred or failed to use their best professional judgment in making these determina-
tions or that his attorney erred or failed to use his best professional judgment in decid-
ing not to pursue a sanity board after discussing their opinions with them by telephone. 
                                                 
7 DSM-IV-TR, p. 405. 
8 Rule 706, Rules for Courts-Martial. 

  
6. 

Under  Article  12.B.1.e.1.  of  the  Personnel  Manual,  even  if  the  applicant 
had been diagnosed with bipolar disorder in 2002, he would not have been entitled to a 
medical  separation  by  reason  of  physical  disability  because  disciplinary  proceedings 
that may result in a punitive discharge supersede the statutes and regulations regarding 
medical separations. 

 
7. 

Therefore, the Board finds that the applicant has not proved that his bad 
conduct discharge was erroneous.  In addition, in light of the record and the above find-
ings,  the  Board  finds  that  the  applicant’s  receipt  of  a  bad  conduct  discharge  was  not 
unjust as it does not shock the Board’s sense of justice.9  His punitive discharge was the 
result of a plea agreement he voluntarily made after he bought illegal drugs, used them 
with a fellow member, and was AWOL.  His record reveals other instances of similar 
misconduct. 

 
8. 

Accordingly, the applicant’s request should be denied. 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
9  Sawyer  v.  United  States,  18  Cl.  Ct.  860,  868  (1989),  rev’d  on  other  grounds,  930  F.2d  1577  (citing  Reale  v. 
United States, 208 Ct. Cl. 1010, 1011 (1976) (finding that for purposes of the BCMRs under 10 U.S.C. § 1552, 
“injustice” is “treatment by military authorities that shocks the sense of justice”); see also Decision of the 
Deputy General Counsel, BCMR Docket No. 2001-043 (finding that the Board has authority to determine 
whether an injustice has been committed on a case by case basis). 

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is denied. 
 
 
 
 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Philip B. Busch 

 

 

 

 
 
 Francis H. Esposito 

 

 

 
 William R. Kraus