IN THE CASE OF:  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140008045 


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, the son of a deceased former service member (FSM), requests, in effect, an upgrade of the FSM's under other than honorable conditions characterization of service.

2.  The applicant states, in effect:

* the FSM received an undesirable discharge without due consideration for his apparent documented traumatic brain injuries (TBI)
* the FSM’s records indicates he received numerous blows to the head
* the science of TBI was not really understood by the FSM or the U.S. Army and no one should be held accountable for this lack of knowledge
* the FSM’s records indicates he had 16 months continuous service toward the Good Conduct Medal at the time of discharge on 1 June 1950
* the FSM received numerous blows to the head
* the FSM was given a permanent profile  
* the FSM displayed classic TBI symptoms such as disorientation, confusion, and rebellion

3.  The applicant provides:

* excerpts of the FSM’s records
* Self-authored statement
* Letter from the National Personnel Records Center (NPRC)
* Death certificate
* Two birth certificates
* print out from the U.S. Army website on TBI
* Driver’s license
* Department of Veterans Affairs Identification Card
* Obituary 

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 FSM's complete military records are not available to the Board for review.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The FSM was inducted into the Army of the United States on 15 August 1941.  He was honorably separated on 31 December 1945.

4.  On 18 January 1946, he enlisted into the Regular Army.  He was honorably discharged on 17 January 1949 for immediate reenlistment.  He was honorably discharged on 31 May 1950 for immediate reenlistment.

5.  His Service Record shows in:

* Section 9 (Remarks-Administrative) – 

* 1 June 1950:  16 months continuous service toward Good Conduct Medal at time of discharge 
* 1 August 1951:  Revised profile 111112, unfit to perform or enter combat  because of episodes of confusion, disorientation, and inappropriate action following blows on head in January 1949, 
April 1950, and February 1951.  Madigan Army Hospital, Tacoma Washington, 26 April 1951 (Permanent Profile) 

* Section 12 (Appointments, Promotions, or Reductions) – the FSM attained the grade of sergeant first class (SFC).

* Section 13 (Record of Trials by Courts-Martial) – the FSM was convicted by court-martial on:

* 26 May 1951 for disorderly conduct
* 1 August 1951 for being absent without leave (AWOL) from 24 July 1951 to 31 July 1951
* 15 May 1952 for being AWOL from 6 May 1952 to 6 May 1952 and for wearing an unclean uniform in public
* 11 August 1952 for breaking restriction 

* Section 15 (Time Lost Under A.W. 107), the FSM was listed as AWOL on the following occasions –

* 3 February 1951 to 4 February 1951
* 13 March 1951 to 15 March 1951
* 24 July 1951 to 31 July 1951
* 24 September 1951 to 24 October 1951
* 1 May 1952 to 1 May 1952

6.  The FSM's discharge packet is not available.  However, his DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged from active duty on 5 March 1953 under the provisions of Army Regulation 615-368 (Enlisted Personnel - Discharge - Unfitness) for unfitness.  He completed 11 years, 3 months, and 24 days of active military service with 72 days of lost time.

7.  There is no evidence of record which shows the FSM applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

8.  Army Regulation 615-368, in effect at the time, 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.


9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently in effect governs the separation of enlisted personnel.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it 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.

11.  TBI is a disruption of brain function resulting from a blow or jolt to the head or penetrating head injury.  Brain injury often occurs during some type of trauma.  Symptoms that result from TBI are known as post-concussion syndrome.  In the days, weeks, and months following a TBI the most common symptoms are:

	a.  Physical

* Headache
* Feeling dizzy
* Being tired
* Trouble sleeping
* Vision problems
* Feeling bothered by noise and light

	b.  Cognitive (Mental)
* Memory problems
* Trouble staying focused
* Poor judgment and acting without thinking
* Being slowed down
* Trouble putting thoughts into words
	c.  Emotional (Feelings)

* Depression
* Anger outbursts and quick to anger

* Anxiety (fear, worry, or feeling nervous)
* Personality changes

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the FSM’s discharge proceedings under the provisions of Army Regulation 615-368 for unfitness are presumed to have been administratively correct and in conformance with applicable regulations.

2.  At the time of the applicant's discharge, TBI was largely unrecognized by the medical community and DoD.  However, both the medical community and DoD now have a more thorough understanding of TBI and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.

3.  A review of the FSM's available records show that he received blows to the head on four different occasions.  Madigan Army Hospital determined the FSM was unfit to perform in combat because of episodes of confusion, disorientation, and inappropriate action following blows to the head.

4.  The applicant’s record is void of any serious misconduct during his periods of enlistments.  It appears that the FSM’s acts of misconduct occurred after he received blows to the head.  He was previously recommended for award of the Army Good Conduct Medal. 

5.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing his DD Form 214 for the period ending 5 March 1953 with his characterization of service shown as "General, Under Honorable Conditions."



      __________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)                                         AR20140008045



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ABCMR Record of Proceedings (cont)                                         AR20140008045



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