IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016316 


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, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states after much persuasion his parents allowed him to enlist in the U.S. Army Reserve (USAR) at 17 years of age.  He adds he completed basic combat and advanced individual training during his initial active duty for training (IADT) period and loved the experience.  Upon learning that he could reenlist in the Regular Army (RA) without his parent's approval, he reenlisted for a period of 3 years.  The applicant also states:

   a.  About 2 weeks after he reenlisted he developed a very bad cough.  He went on sick call and received medical treatment (i.e., cough syrup).  A few days later he received reassignment orders.

   b.  He stopped at home on leave, his symptoms worsened, and he was seen by his family doctor.  He was diagnosed with whooping cough, told it was very contagious, he could not travel, and that he should get in touch with Army officials.  He adds that his mother contacted a sergeant who assured her he would take care of everything.  The sergeant also advised the applicant's mother to have the applicant report to his unit as soon as he was cleared for release.

   c.  When he returned to his unit, the first sergeant called him into his office and another Soldier came in with a .45 caliber pistol.  He states, in effect, he was accused of being absent without leave (AWOL).  The military police were then called and the applicant was arrested and placed in confinement.  He adds he continued to experience nausea while in confinement.
   
   d.  His mother continued to try to contact the sergeant who had authorized the applicant's delay in returning to his unit, but with no success.  She contacted a chaplain who arranged for the applicant to be moved from the stockade to the detention center.  However, a sergeant threatened to keep him in the stockade and seek the maximum punishment for his offense.

   e.  One of the staff who overheard the sergeant's threat told him that "he would look the other way" and, if the applicant left and turned himself in at another base, the sergeant would have no more control over him.  The applicant states he left that night and, after a couple of weeks, he turned himself in at Fort Knox, Kentucky.

   f.  He was punished for his offense and then received orders for Iceland.  After a couple of days at his new unit, the commander and first sergeant told him they didn't like troublemakers and he was assigned to kitchen police duty on a regular basis.  He was also required to perform other barracks details.  He adds that he returned to the United States early, along with his unit.

   g.  The Army failed to properly diagnose and treat him and these mistakes caused a chain of events that led to his unjust discharge.  He adds that a responsible Army official should have investigated and realized that he was actually telling the truth about his situation.

3.  The applicant provides copies of four medical documents and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 had prior enlisted service in the USAR and, upon completion of IADT, he was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  The applicant enlisted and in the RA for a period of 3 years on 6 November 1958.

4.  The applicant's military personnel records contain the following documents:

   a.  A statement by First Lieutenant (1LT) Norbert B. J___ that shows he received a telephone message from the applicant's mother, Mrs. Helen C___, on
18 December 1958.  She told him the applicant was on leave and their family doctor had diagnosed her son's illness as whooping cough and instructed him to remain in bed for 7 to 10 days:

       (1)  1LT J____ spoke with the applicant and instructed him to contact his unit and, if he was not well enough to travel at the end of that time, he should check into his unit's Aid Station.

       (2)  1LT J___ also contacted Captain (CPT) Arthur J. G____, 2nd Army Dispensary, Lordstown Military Reservation, Warren, Ohio, and reported the information.

       (3)  1LT J___ stated he heard nothing more until 18 or 19 January 1959 when the applicant's mother telephoned him and said her son was too weak to travel.  1LT J___ advised the applicant's mother to have her son report to the U.S. Navy Dispensary at East 13th Street, Cleveland, Ohio, or to the unit's Aid Station.

   b.  A "True Copy" of a letter from Doctor Jacob S____, dated 22 January 1959, that states he saw the applicant on 17 December 1958 and 3 January 1959 for the treatment of pertussis.

   c.  A "True Copy" of a DD Form 481-3 (Clinical Record Cover Sheet) that shows the applicant was seen by Doctor S____ on 17 December 1958.  It also shows in item 23 (Diagnosis) the entry "0560 - Whooping cough.  Not 'PR'," and that the applicant was given 17 days quarters.  It further shows the applicant was directed to return to duty on 3 January 1959.

   d.  A "True Copy" of a letter from Doctor S____, dated 19 February 1959, that shows he saw the applicant on 17 December 1958 and 3 January 1959 for treatment of a moderately severe case of pertussis and that he released him on
3 January 1959.  It also shows the applicant returned to his office on 17 January 1959 complaining of nausea and vomiting and Doctor S____ advised him to go to the local Veterans' hospital.

   e.  A Standard Form 509 (Clinical Record - Doctor's Progress Notes), dated
2 February 1959, that shows the applicant was seen and treated by an Army medical doctor for a recurrent cough (that occurred mostly at night) which the applicant's local medical doctor had diagnosed as whooping cough.  It also shows the applicant had no other symptoms.

   f.  A letter from the applicant's mother, dated 2 May 1959, that shows she called the Armory in December [1958] and spoke with Sergeant Smith who informed her the applicant's unit authorized an extension and instructed the applicant to return upon his release by the doctor.  She also stated the applicant was released by the doctor on 17 January 1959 and he returned to his U.S. Army unit on 19 January 1959.

5.  Headquarters Group, U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 249, dated 21 May 1959, shows the applicant was tried at a special court-martial.  The Order also shows:

   a.  He pled not guilty and was found guilty of the charge and specification of being AWOL from his organization from 5 January to 21 January 1959.

   b.  He pled guilty and was found guilty of the charge and specification of being AWOL from his organization from 14 March to 8 April 1959.

   c.  On 21 May 1959, he was sentenced to a forfeiture of $55.00 pay for 
6 months, reduction to pay grade E-1, and confinement at hard labor for
6 months.
   
   d.  On 21 May 1959, the convening authority approved and executed the sentence.

6.  Headquarters Group, U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 261, dated 26 May 1959, shows the unexecuted portion of the sentence to confinement at hard labor was suspended for
6 months effective 27 May 1959.

7.  Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 6, dated 4 June 1959, shows the finding of guilty of the charge and specification of being AWOL from 5 January to 21 January 1959 and so much of the sentence in excess of reduction to pay grade E-1, confinement at hard labor for 3 months, and a forfeiture of $55.00 pay for 3 months was set aside.

8.  The applicant was assigned overseas and served in Iceland from
16 November 1959 through 4 March 1960.

9.  A DA Form 1049 (Request for Psychiatric Examination), dated 29 June 1960, shows the applicant's company commander requested that the applicant undergo a psychiatric examination.

10.  A certificate shows the applicant was evaluated by a neuropsychiatrist at the Mental Hygiene Consultation Service, Ireland Army Hospital, Fort Knox, Kentucky, on 1 July 1960:
   
   a.  The applicant was diagnosed with an "Inadequate Personality."

   b.  "This condition is not amenable to medical or psychiatric treatment in the military setting."
   
   c.  The neuropsychiatrist opined that the applicant was mentally able to distinguish right from wrong and to adhere to the right; the applicant was mentally able to understand the nature of the board proceedings and to testify in his own defense; and there was no physical or mental defect warranting medical separation of the applicant.

   d.  The neuropsychiatrist recommended the applicant be administratively discharged] because of unsuitability.

11.  Headquarters, 2nd Infantry Brigade, Fort Devens, Massachusetts, Special Court-Martial Order Number 49, dated 17 August 1960, shows the applicant was tried at a special court-martial:

   a.  He pled guilty and was found guilty of the charge and specification of being AWOL from his unit from 6 April to 15 June 1960.

   b.  On 10 August 1960, he was sentenced to a forfeiture of $70.00 pay for 
6 months, reduction to pay grade (E-1), and confinement at hard labor for 
6 months.
   
   c.  On 17 August 1960, the convening authority approved and executed the sentence.

12.  Headquarters, Fort Devens, Fort Devens, Massachusetts, Special Court-Martial Order Number 135, dated 12 September 1960, shows that so much of the sentence in excess of confinement at hard labor for 6 months, a forfeiture of $55.00 pay for 6 months, and reduction to pay grade E-1 was set aside.

13.  Headquarters, U.S. Army Garrison, Fort Jay, Governors Island, New York, New York, Special Court-Martial Order Number 268, dated 11 October 1960, shows the unexecuted portion of the sentence to confinement at hard labor for
6 months and a forfeiture of $70.00 pay for 6 months was modified to read confinement at hard labor for 6 months, a forfeiture of $55.00 pay for 6 months, and reduction to pay grade E-1 was remitted.

14.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

15.  The applicant's DD Form 214 shows he was discharged on 11 October 1960 in accordance with Army Regulation 635-208 with an Undesirable Discharge Certificate due to unfitness (separation program number 28B):

   a.  At the time he had completed 1 year, 3 months, and 7 days of net active service this period; 6 months of other service; and 3 months and 18 days of foreign service.

   b.  Item 32 (Remarks) shows he had a total of 239 days of lost time under Title 10, U.S. Code, section 972.

16.  On 11 October 1960, the applicant acknowledged he understood that he must apply to the Army Discharge Review Board within 15 years after the effective date of his discharge if he desired a review of his discharge.

17.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18.  In support of his application the applicant provides the following documents:

   a.  An SF 600 shows the applicant was seen on 28 November 1958 for a cough he had for 3 days and he was placed on quarters.  On 1 December 1958, his condition had improved and he was returned to duty.

   b.  A DD Form 481-3 (Clinical Record Cover Sheet) that offers the same information as the "True Copy" (paragraph 4c, above), along with the signatures of the doctors.
   c.  A DD Form 735 (Health Record - Abstract of Service) that identifies the applicant's servicing medical treatment facilities during his military service.

   d.  A "Learn About Whooping Cough" webpage that describes the medical condition of whooping cough, also known as pertussis.

19.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for unfitness due to having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:  

	a.  Chapter 3, 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.

	b.  Chapter 3, paragraph 7b, provides that an under honorable conditions is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable because the Army failed to properly diagnose and treat him, and these mistakes caused a chain of events that led to his unjust discharge.

2.  The applicant's military records were carefully reviewed and considered.  The evidence of record shows the applicant was diagnosed with and treated for whooping cough (pertussis).  The evidence of record also shows that Army officials advised the applicant to report to a military medical facility for treatment.  He was also advised to contact his unit at the end of the specified treatment period.  In addition, he was seen and treated by an Army medical doctor for his recurrent cough when he returned to duty; however, there is no evidence the applicant's medical condition was found unfitting for military service.

3.  The applicant's separation under the provisions of Army Regulation 635-208 for unfitness was proper and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the characterization of service directed was appropriate and equitable.

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)                                         AR20100016316



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ABCMR Record of Proceedings (cont)                                         AR20100016316



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