IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100011779 


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 his General Educational Development (GED) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); he be paid for the money he should have received if he had not been given an undesirable discharge, and he be awarded the National Defense Service Medal (NDSM) and Marksman Marksmanship Qualification Badge with Rifle Bar.

2.  The applicant states his GED is not shown on his DD Form 214, and the National Personnel Records Center (NPRC) informed him he is entitled to the NDSM and the Marksman Marksmanship Qualification Badge with Rifle Bar.  He also states he was not given the money he was owed when he was discharged.

3.  The applicant adds that he was convicted by a special court-martial and punished for offenses that he committed while he was ill and that he was raped by two marines while he was in the stockade.

4.  The applicant does not provide any additional documents.

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’s military records show that he enlisted in the Regular Army on 27 August 1963, was awarded the military occupational specialty of armor crewman, and was assigned to Bremerhaven, Germany on 6 January 1964.

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions (20 March 1964, 25 May 1964, 1 August 1964, and 25 May 1965) for disobeying a lawful order not to carry or have in his possession any live ammunition; for wrongfully and unlawfully discharging a fire arm while performing guard duty; being absent without leave (AWOL) from 25 to 26 May 1964; failing to go at the prescribed time to his appointed place of duty; assaulting a German national by striking him in his face with his fist; and for absenting himself from his place of duty.

4.  On 30 September 1964, the applicant was convicted by a special court-martial for being AWOL from 22 to 28 August 1964 and again from 29 August to 12 September 1964.

5.  On 8 October 1964, the applicant was diagnosed with an immature personality during a psychiatric evaluation.

6.  On 10 May 1965, the applicant had a bilateral subtotal thyroidectomy and returned to duty with a temporary physical profile.

7.  On 8 June 1965, the applicant had a physical examination and was determined to be medically qualified for retention or separation.

8.  On 22 July 1965, the applicant was given an undesirable discharge due to unfitness.  His DD Form 214 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

9.  There is nothing in the applicant's record to show that he was raped or that he reported any such incident to his chain of command.

10.  On 19 October 1982, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB stated "The most significant medical problems revealed by the applicant's record is an operation which removed his thyroid gland in May 1965.  There is absolutely no evidence that this or any other physical condition contributed to his poor performance while in the Army.  It is noted that at the time of his discharge physical examination he reported that he was in good health."

11.  On 19 October 1983, the ABCMR upgraded the applicant's discharge to a general discharge.  The ABCMR based its recommendation on an advisory opinion from an official from the Office of The Surgeon General (OTSG) who stated that hyperthyroidism may be associated with sociopathic behavior and that the applicant's disciplinary infractions occurred when he was undoubtedly thyrotoxic.

12.  On 21 April 2006, the applicant's DD Form 214 was amended from reading "No" to reading "Yes" in Item 16 (High School Graduate or Equivalent).

13.  On 31 July 2006, the Defense Finance and Accounting Service (DFAS) responded to the applicant's elected representative concerning his GED and pay.   DFAS stated that the applicant's DD Form 214 had already been amended to show the applicant was a high school graduate or equivalent by changing Block 16.  DFAS stated that due to the passage of time, they did not have records to show what the applicant was paid or had not been paid; therefore, his request for additional pay was denied.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 
14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.

15.  Hyperthyroidism occurs when the thyroid releases too much of its hormones over a short (acute) or long (chronic) period of time.  According to MedlinePlus.gov the symptoms of this disease are:

* Difficulty concentrating 
* Fatigue 
* Frequent bowel movements 
* Goiter (visibly enlarged thyroid gland) or thyroid nodules 
* Heat intolerance 
* Increased appetite 
* Increased sweating 
* Irregular menstrual periods in women 
* Nervousness 
* Restlessness 
* Weight loss (rarely, weight gain) 


Other symptoms that can occur with this disease are:

* Breast development in men 
* Clammy skin 
* Diarrhea 
* Hair loss 
* Hand tremor 
* Weakness 
* High blood pressure 
* Itching - overall 
* Lack of menstrual periods in women 
* Nausea and vomiting 
* Pounding, rapid, or irregular pulse 
* Protruding eyes (exophthalmos) 
* Rapid, forceful, or irregular heartbeat (palpitations) 
* Skin blushing or flushing 
* Sleeping difficulty 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 was amended on 21 April 2006 to show he was a high school graduate or equivalent.  This is the only entry to be made to reflect a Soldier earned his GED while in the service.  As such, there is no further action to take on this portion of the applicant's request.  A copy of the DD Form 215 will be provided to the applicant.

2.  Since the applicant was originally given an undesirable discharge, he was properly not awarded the NDSM.  However, since his discharge has been upgraded to a general discharge, he is now eligible for the NDSM and it would be appropriate to add this service medal to his DD Form 214.

3.  The applicant's DD Form 214 already shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  As such, there is no reason to address this portion of the applicant's request.

4.  As for pay, the DFAS has informed the applicant (through his elected representative) that pay records do not exist to show what he has or has not been paid.  However, it is clear that the applicant is contending that his hyperthyroidism caused the behavior which led to his NJPs and court-martial, and the money which was forfeited should be returned to him.

5.  In this regard, the ABCMR gave the applicant the benefit of the doubt when it upgraded his discharge since there is no evidence that the applicant's hyperthyroidism caused his misconduct.  The symptoms of hyperthyroidism listed in MedLinePlus.gov do not include anything which would indicate that a person suffering from this condition would be prone to committing acts of misconduct.  In addition, the applicant had a psychiatric examination prior to the removal of his thyroid which did not note any psychiatric problems other than immature personality, and he received one NJP after his thyroid was removed.

6.  There is nothing in the applicant's record to indicate that he was raped and he has not provided any evidence to support this contention.  Therefore, this is not sufficient to further mitigate his misconduct.

7.  Since there is no evidence that the applicant did not know right from wrong or was unable to adhere to the right there is no basis for setting aside his punishment, the sentence, or the money he forfeited as a result.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the NDSM to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to authorizing any additional pay for him.




      _______ _   _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)                                         AR20100011779



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ABCMR Record of Proceedings (cont)                                         AR20100011779


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