IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20140020450 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 her discharge be upgraded to honorable and that the narrative reason for her discharge be changed to show she was discharged due to a disability. 2. She states that her records clearly show that while on active duty she was diagnosed with bipolar disorder. She saw a psychiatrist on two occasions but received no further evaluation. The very nature of bipolar disorder can cause erratic behavior, including but not limited to defiance, dereliction of duties, malingering, depression, suicidal tendencies and ideations, not to mention insomnia, mania, quickened slurred speech, sleeping while standing, and loss of appetite. Her behavior was categorized as misconduct by her chain of command and she received counseling for several disciplinary infractions. Subsequent to her discharge, the Department of Veterans Affairs (VA) determined that her medical condition began in the military, so it stands to reason that she should have been discharged under medical auspices in the first place. 3. She further states that it has taken the military over 15 years to come to terms with how a mental illness can effect a Soldier’s mind and their behavior. Slowly, they have taken steps to catch those who have fallen through the cracks. She is one of those people who fell through the cracks. She did not receive a proper mental evaluation or physical evaluation upon her discharge. Now, 18 years later, she suffers from the same illness. She did her best to serve her country honorably and wants her country to do the same for her. 4. The applicant provides no additional documentation. 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. She enlisted in the Regular Army on 15 February 1995. 3. Her disciplinary history shows that while assigned to the Military Intelligence Battalion, Defense Language Institute, Foreign Language Center, Presidio of Monterrey, CA, she - a. was counseled on 19 March 1996 for her lack of desire, indifference, motivation, and failure to complete course work due to personal problems and/or outside distractions; and b. accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for making a false statement to a noncommissioned officer (NCO) and disobeying a lawful order from a commissioned officer. As the result of this misconduct she received a Letter of Reprimand from her company commander. 4. Her records contain: a. A Report of Mental Status Evaluation, dated 20 March 1996, which psychiatrically cleared her for administrative action and found her able to fully understand the separation proceedings. This form shows she was mildly depressed but is void of a bipolar disorder diagnosis. b. A Report of Medical History completed by the applicant as part of her separation processing. She reported that she suffered from depression and excessive worry and that she had been evaluated in October 1995 by Dr. F---- for depression at the request of her chain of command. c. A Report of Medical Examination, dated 25 March 1996, which medically qualified her for separation. 5. On 2 April 1996, the applicant's unit commander notified her that he was initiating action which could result in her separation from the Army with an under honorable conditions discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel, chapter 14-12(a), for misconduct. The reasons for the proposed action included making a false statement, failure to complete an assignment, disobeying a lawful order from an NCO, and disobeying a lawful order from a noncommissioned officer. 6. On the same day, after consulting with counsel, she voluntarily waived her right to be represented by counsel and she did not submit statements in her own behalf. 7. On 9 April 1996, the separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12(a), and that she be furnished a general under honorable conditions characterization of service. 8. On 18 April 1996, she was discharged in accordance with the separation authority's decision. Her DD Form 214 shows: * her service was characterized as "under honorable conditions (general)" * she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(a), with a separation program designator (SPD) code of JKN and an RE code of 3 * her narrative reason for separation was "misconduct" 9. Her personnel records do not show a diagnosis of biopolar disorder and she did not provide her VA rating determination. 10. On 11 April 2016, the Chief, Behavioral Health Division, Office of the Surgeon General, reviewed the documents provided by the applicant. This official stated that based on the available information, the applicant may have had a psychiatric condition, the symptoms of which may have contributed to her behavior. However, with no information other than information reported by the applicant, it was not possible to offer a more conclusive opinion. The applicant was provided this advisory opinion for review but did not provide comment. 11. There is no indication in her records that she petitioned the Army Discharge Review Board for an upgrade of her discharge. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 13. Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214. It states that item 28 will list the narrative reason for separation based on regulatory or other authority. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 2-1 (Standards of unfitness by reason of physical disability) of this regulation, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case considered, it is necessary to correlate the nature and degree of physical disability which is present with the requirements of the duties which the member reasonably may be expected to perform by virtue of his office, grade, rank, or rating. 15. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant requests that her discharge be upgraded to honorable and that it reflect she was discharged based on a disability. 2. She was discharged under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct with an under honorable conditions (general) discharge based minor disciplinary infractions. 3. As part of her separation processing the applicant underwent mental health and physical examinations which cleared her for discharge. Her medical history shows she reported seeing a medical doctor for depression; however, she did not report a diagnosis of bipolar disorder. 4. Neither her complete medical records nor her VA Disability Rating Decision are available for review. By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. The evidence of record provides no indication the applicant suffered from a physically or mentally disqualifying condition that would have supported her separation processing through the Army disability evaluation system at the time of her separation. 5. She was properly and equitably discharged in accordance with the applicable regulation, all requirements of law and regulation were met, and her rights were fully protected throughout the separation process. 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) AR20140020450 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020450 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1