BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011039 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011039 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. BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011039 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 the following: * an upgrade of his general discharge to an honorable discharge * a change to the narrative reason for his discharge from "misconduct" to a different reason 2. The applicant states the Department of Veterans Affairs (VA) diagnosed him with bipolar disorder II in 2010. He was unaware of his condition prior to this date. This condition is a very serious disorder to live with. He believes that his using marijuana was due to his disorder and that he was self-medicating for the problem. It has been 18 years since his discharge. He was a productive citizen until his incarceration in December 2001. 3. The applicant provides his VA Progress Notes. 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 the cases 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. 2. The applicant enlisted in the Regular Army on 22 August 1991 for 3 years. He held military occupational specialty 19K (M1 Abrams Armor Crewman). He served in Germany from 10 January 1992 to 23 June 1994. He was promoted to pay grade E-3. 3. On 24 February 1993, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 28 November and 28 December 1992. His punishment consisted of a reduction to pay grade E-1, a forfeiture of $437.00 pay for 2 months (1 month suspended), and 45 days of extra duty. He did not appeal. He was reduced to pay grade E-1 on the same date. 4. He was promoted to pay grade E-3 on 1 July 1993 and pay grade E-4 on an unknown date. 5. His records contain: a. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 18 February 1994, showing a flag was initiated against him for adverse action. b. A DA Form 3822-R (Report of Mental Status Evaluation), dated 11 March 1994, showing his behavior was normal. He was fully alert and fully oriented. His mood was unremarkable. His thinking process and thought content were clear. The examination found no psychopathology requiring disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by the command. 6. On 7 April 1994, he accepted NJP under Article 15, UCMJ, for wrongfully using marijuana between 2 December 1993 and 4 January 1994. His punishment consisted of reduction from pay grade E-4 to pay grade E-1, forfeiture of $416.00 pay for 2 months, and 45 days of extra duty. He did not appeal. 7. On 12 April 1994, he received counseling for his performance and failing to report to his appointed place of duty. 8. His records also contain: a. A Standard Form (SF) 93 (Report of Medical History), dated 2 May 1994, wherein he stated that he was in good health. The only medical condition indicated was his hearing loss. b. An SF 88 (Report of Medical Examination) showing he underwent a medical examination on 2 May 1994 for the purpose of his chapter separation. The only medical condition indicated on the form was his hearing loss and he was found qualified for separation. 9. On 16 May 1994, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct with a general discharge. The company commander stated the reason for the proposed action was the applicant's wrongful use of marijuana. He advised the applicant of his rights. 10. On 20 May 1994, after consulting with counsel, the applicant acknowledged receipt of the proposed separation. He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 11. On 23 May 1994, the applicant's commanders recommended approval of the applicant's general discharge. 12. On 3 June 1994, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate. 13. He was discharged accordingly in pay grade E-1 on 24 June 1994. He completed 2 years, 10 months, and 3 days of active service. His service was characterized as under honorable conditions (general). His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists in: * Item 25 (Separation Authority) – AR 635-200, paragraph 14-12B * Item 28 (Narrative Reason for Separation) – misconduct 14. He provided his VA Progress Notes, dated between November 2009 and December 2011, showing he was first diagnosed with bipolar disorder in January 2010. The records also indicated he was hospitalized on several occasions for his condition. 15. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. On 22 August 2016, an advisory opinion was provided by Chief, Behavioral Health (BH) Division, Health Care Delivery, Office of The Surgeon General (OTSG). The OTSG official stated: a. The applicant entered active duty on 22 August 1991 and was discharged under honorable conditions (general) on 24 June 1994 in accordance with AR 635-200, paragraph 14-12B (misconduct) for wrongful use of marijuana in November 1992 and December 1993. b. The applicant requested that the Board upgrade his discharge due to bipolar disorder. The OTSG was asked to determine if the applicant's military separation was due to bipolar disorder or any other BH condition. This opinion was based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time of his service. c. The applicant's separation medical examination, dated 2 May 1994, included no mention of BH conditions, and on 11 March 1994, he was psychiatrically cleared for administrative separation. d. Following his discharge, the applicant was hospitalized in November 2009 and January 2010, when he was diagnosed by the VA with bipolar disorder, and in April and November 2011. Records indicated he had been homeless on several occasions and had difficulty adapting to residential placements. e. It is not unusual for people in the early stages of bipolar disorder to self-medicate emerging symptoms with drugs or alcohol. The severity of the applicant's subsequent impairment is well-documented by the VA. Together with his need for continued supportive services, such as housing assistance, this suggests that at the time of his misconduct he met the criteria for bipolar disorder. Therefore, his separation was due to a BH condition in that his use of illegal drugs was a plausible reaction to symptoms of bipolar disorder that typically manifest in young adulthood. 17. The advisory opinion was provided to the applicant on 31 August 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 14-12b – Members were subject to separation for a pattern of misconduct consisting of conduct prejudicial to good order and discipline. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under that chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 2. AR 635-5 (Separation Documents), in effect at the time, established the policies and procedures for completion and distribution of the DD Form 214. It stated item 28 would list the narrative reason for separation based on regulatory or other authority and could be cross-referenced with AR 635-5-1. 3. AR 635-5-1 (Separation Program Designator Codes) provides the narrative reasons for separation to be entered in item 28 of DD Form 214. The version in effect at the time of the applicant's discharge stated the narrative reason "Misconduct" was to be used for separations under the provisions of AR 635-200, paragraph 14-12B. DISCUSSION: 1. The evidence shows action was initiated to separate the applicant due to misconduct for using marijuana on two occasions. The separation authority approved his general discharge and he was discharged accordingly on 24 June 1994. 2. No evidence has been presented which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 3. Prior to his separation, he underwent a mental status evaluation that found no psychopathology that required disposition through medical channels. 4. His VA medical records show he was diagnosed with bipolar disorder in January 2010. After a review of his medical records, the OTSG advisory official opined that it was not unusual for people in the early stages of bipolar disorder to self-medicate emerging symptoms with drugs or alcohol. The advisory official concluded that his separation was due to a BH condition in that his use of illegal drugs was a plausible reaction to symptoms of bipolar disorder that typically manifest in young adulthood. 5. Aside from his marijuana use, it appears there was no other basis for his administrative discharge. He was discharged for misconduct, which is properly shown on his DD Form 214. 6. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011039 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011039 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2