BOARD DATE:	  30 November 2010 

		DOCKET NUMBER:  AR20100014239 


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 upgrade of his undesirable discharge to an honorable or a general discharge or changed to a medical discharge.

2.  The applicant states:

* This is his second request for a discharge upgrade
* He discovered a few years ago that he has Tourette's Syndome (TS)
* The symptoms of TS caused him to do things that were irrational, compulsive, and wrong
* TS ruined his Army career and he has experienced a lot of trouble with this condition
* He started treatment for TS and is doing better now
* He was ashamed and afraid to tell anyone of his condition while he was in the Army

3.  The applicant provides the following documents:

* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* His DD Form 215 (Correction to DD Form 214)
* Internet information on TS
* A letter from his physician
* A letter from the U.S. Army Reserve Personnel Center, St. Louis, MO


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.  He previously requested upgrade of his undesirable discharge to either an honorable or a general discharge.  This issue was considered by the ABCMR on 23 March 1988 per Docket Number AC87-00052 and denied.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Since the applicant’s request pertaining to upgrade of his discharge to an honorable or a general discharge does not meet the criteria for reconsideration, this portion of his request will not be discussed further in these Proceedings.

3.  He enlisted in the Regular Army on 31 October 1963 for 3 years.  His highest rank/grade attained was private first class (PFC)/E-3.

4.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on 8 occasions for:

* Treating with contempt and using provocative language toward a class leader
* Reporting late for kitchen police detail 
* Being absent without leave (AWOL) from 29 April 1964 to 30 April 1964
* Being absent from his unit for several hours on three occasions
* Being AWOL from 7 May 1965 to 9 May 1965
* Failing to go at the time prescribed to his appointed place of duty
* Breaking restriction
* Missing reveille formation
* Being disorderly

5.  On 16 November 1965, the applicant underwent a psychiatric evaluation which cleared him for the appropriate administrative action.  The medical officer’s report shows the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  The medical officer indicated the applicant was characterized by impulsive, irrational behavior as evidenced by his constant AWOLs and misconduct.

6.  On 27 December 1965, he was convicted by a special court-martial of failing to go at the time prescribed to his appointed place of duty (2 specifications), AWOL from 8 December 1965 to 9 December 1965, failing to obey a lawful order issued by a sergeant, and breaking restriction.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $80.00 for 6 months, and reduction to private (PV1)/E-1.

7.  He underwent a separation physical examination on 2 March 1966 and was found qualified for separation with a physical profile of 111111.  An individual having a numerical designation of “1” under all factors of his/her physical profile is considered to possess a high level of medical fitness.

8.  On 2 March 1966, a board of officers met and recommended the applicant's discharge from the service because of unfitness with an undesirable discharge.  The appropriate approving authority approved the findings and recommendations of the board of officers and directed issuance of an Undesirable Discharge Certificate.

9.  He was accordingly discharged from active duty on 19 April 1966 under the provisions of Army Regulation 635-208 (Unfitness, Frequent Incidents of a Discreditable Nature) with issuance of an Undesirable Discharge Certificate.  He completed 2 years and 19 days of total active service.  His DD Form 215 shows he had 114 days of time lost.

10.  In a 20 June 1988 letter, the U.S. Army Reserve Personnel Center, St. Louis, informed the applicant that his application to the ABCMR was not filed within the time limits prescribed by Title 10, U.S. Code, section 1552(b).

11.  The applicant provides a letter, dated 5 March 2010, wherein a physician indicated he had been a patient of his for several years, that he suffers from symptoms of TS, and that he is currently undergoing treatment.

12.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that TS played a major role in his behavior which caused him to do things that were irrational, compulsive, and wrong was carefully considered.

2.  His record is void of any evidence and he did not provide any evidence showing he suffered from any type of physical or mental disorder at the time of his service.

3.  His record of service shows he received 8 Article 15s and he was convicted by a special court-martial.  His service record is void of evidence which shows his medical condition contributed to his misconduct.  

4.  The evidence of record shows that prior to his separation in April 1966 competent medical authority determined he was medically qualified for separation with a physical profile of 111111.  He did not have any medically unfitting disability which required physical disability processing.

5.  His administrative separation under the provisions of Army Regulation
635-208 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.


6.  In view of the foregoing, there is no basis for granting the applicant's request for a medical discharge.

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)                                         AR20100014239



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ABCMR Record of Proceedings (cont)                                         AR20100014239



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