IN THE CASE OF:  	  

		BOARD DATE:  16 June 2015	    

		DOCKET NUMBER:  AR20150005259


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 an upgrade of his general discharge (GD) (i.e., an upgrade of his under other than honorable conditions (UOTHC) discharge) to an honorable discharge (HD).

2.  The applicant states, in effect:

* His discharge was caused by a traumatic brain injury (TBI) that he suffered during a parachute [jump] at a training exercise as an airborne trooper in South Carolina  
* He suffers from bad headaches which an operation would not correct  
* At the time, TBI was not recognized and it contributed to the behavior that caused his discharge  
* He has no supporting documents due to a house fire in Indiana in 1973, which destroyed his medical and personnel records

3.  The applicant provides:

* A DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* A VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim)
* A letter from the Tampa General Hospital Emergency Department, dated 30 January 2015
* Clinical Notes and Laboratory Results
* A CT (Computed Tomography) Angiogram, Final Imaging Report, from Tampa General Hospital Radiology Services
* 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.  On 11 February 1963, the applicant was inducted into the Army of the United States.  After completing training, he was awarded military occupational specialty 140.07 (Field Artillery Basic).

3.  On 24 January 1964, the applicant was found guilty at a special court-martial (SPCM) of being absent without leave (AWOL) from 12 November to 
26 December 1963.

4.  On 2 June 1964, he received a psychiatric evaluation due to elimination processing for unsuitability.  He was diagnosed with a passive-aggressive personality, chronic and severe, that was not incurred in the line of duty and that existed prior to service.  The psychiatrist stated the applicant was mentally responsible and able to distinguish right from wrong and adhere to the right.  He also had the mental capacity to understand and participate in board proceedings.  The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).

5.  On 5 June 1964, he was notified by his commander that he was being recommended for discharge under the provisions of Army Regulation 635-208 with an Undesirable Discharge.  The applicant acknowledged he had been counseled and advised of the basis for the pending separation action under the provisions of Army Regulation 635-208.  The applicant declined the opportunity to consult with counsel and waived a hearing of his case by a board of officers.

6.  On 11 June 1964, the applicant was found guilty at a SPCM of being AWOL from 2 April to 8 May 1964.  He was sentenced to confinement at hard labor for
6 months and a forfeiture of $28.00 pay for 6 months. 

7.  On 18 June 1964, the applicant appeared before a Clemency Board and it was recommended that he be separated pursuant to Army Regulation 635-208.

8.  On 26 June 1964, the separation authority approved the applicant’s separation.

9.  On 29 June 1964, the unexecuted portions of the sentence imposed in the SPCM on 11 June 1964 were remitted.

10.  On 21 July 1964, he was discharged under the provisions of Army Regulation 635-208, for unfitness, with an UOTHC characterization of service.  He had completed 10 months of creditable active service with 223 days of lost time due to being AWOL and in confinement.

11.  There is no documentation in the applicant's medical record that shows he was treated for a head injury during a parachute jump at a training exercise in South Carolina.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  The applicant provides post-service medical records that reveal the following information:

   a.  On 9 December 2014, he was seen at the Andon Hospital, FL for a CT image.  No acute intracranial abnormality was noted.  

   b.  On 11 February 2015, 27 February 2015, 3 March 2015, and 7 April 2015, he was seen at a hospital and was treated for cardiomyopathy, a chest injury, cirrhosis of the liver, coronary artery disease, osteoarthritis, psoriasis, pulmonary fibrosis, splenomegaly and thrombocytopenia.  
   
   c.  On 30 January 2015, the applicant was seen at Tampa General Hospital, FL for a headache, in which a CT angiogram of the head and neck was performed.  Results found a high grade stenosis (an abnormal narrowing in a blood vessel or other tubular organ or structure) of the right proximal internal carotid artery, but no vascular abnormality in the head.

14.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an HD 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.  Paragraph 3-7b provides that a GD 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.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant believes he received a general discharge and he is requesting an upgrade to an HD; however, he received an UOTHC characterization of service.

2.  The applicant contends he was suffering from a TBI due to a parachute jump.  However, no medical documentation substantiates that he received a head injury of any kind during his active duty service.  There is no record of him receiving any medical treatment for his head injuries before the periods he was AWOL or after he returned to military jurisdiction.  

3.  His official military personnel records show he received two SPCM's for being AWOL for a total of 223 days.  Therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  


4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  A UOTHC discharge is normally considered appropriate when a member is separated under the provisions of Army Regulation 635-208.  There is no evidence of procedural or other errors that would have jeopardized his rights.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to a GD or an HD.

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 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)                                         AR20130014881



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ABCMR Record of Proceedings (cont)                                         AR20150005259



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