BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150017797 BOARD VOTE: ____x_____ ___x____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150017797 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 reissuing the applicant's DD Form 214 for the period ending 31 May 1985 showing his characterization of service as honorable and showing his rank/grade as PV2/E-2 with a date of rank of 17 January 1985. ______________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. BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150017797 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 discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant states: a. He believes his discharge was overly harsh and consequently inequitable due to overwhelming mitigating circumstances at the time of his discharge. b. His second enlistment ended after approximately 7 months of service. He had suffered a severe concussion and was not emotionally stable or functioning properly at the time. c. He suffered repeated traumatic brain injuries (TBIs) over an extended period of time (4 years), which resulted in cumulative behavioral and cognitive deficits. On 5 October 1984, he suffered a severe concussion during a boxing match and was seen at Womack Army Medical Treatment Facility on 9 October 1984. The attending physician incorrectly noted he had no prior concussions when, in fact, he had suffered numerous concussions during the prior 4 years as a member of the Army Boxing Team. His inability to manage his emotional state and think clearly impacted his behavior. His command did not consider his underlying health issue (TBI) at that time. d. Many years later, he realizes he would have made a better decision had he not been suffering from a cumulative TBI problem, and he would not have chosen to be absent without leave (AWOL). Rather, he would have sought medical treatment and behavioral counseling to help him manage and make better decisions. 3. The applicant provides: * case analysis and summary, dated 17 October 2015 * service personnel records * discharge proceedings * divorce document * medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 14 August 1980 for a period of 4 years. He completed training and was awarded military occupational specialty 76J (medical supply specialist). He was honorably discharged on 21 June 1984 for immediate reenlistment. He reenlisted on 22 June 1984 for a period of 3 years. 3. He provided a Standard Form 513 (Medical Record – Consultation Sheet), dated 9 October 1984, stating: a. He was seen and evaluated for complaints of left facial pain and some confused thinking following a boxing match 4 days earlier. During this match, he was struck with a right hook to the face and was knocked down. Although he denied loss of consciousness, he stated he was definitely dazed and has poor memory for Saturday and Sunday. b. Over the last 2 days, he feels he has completely recovered and his thinking is now back to normal, including memory and other higher intellectual functions. However, he has continued to complain of left facial pain in the maxillary region, especially when he closes his mouth tightly. Because of his complaints of confusion, he was referred to neurology by his boxing coach. c. He has not suffered any previous concussion or head injuries. d. His neurological examination shows his mental status as alert and oriented and his neurological functions were within normal limits. 4. On 19 November 1984, nonjudicial punishment (NJP) was imposed against him for striking his wife in the face with his fist. 5. He was AWOL from 15 December 1984 to 4 February 1985. Charges were preferred against him for the AWOL period. 6. On 12 March 1985, NJP was imposed against him for disobeying a lawful command. 7. On 8 April 1985, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected to make a statement in his own behalf. In summary, he stated he originally requested to stay in the Army, but he is an E-2 and he would need too many waivers to reenlist when the time comes. He intends to go back to college and become a scientist. He is also studying ministry. He plans to get a job and start his life over. 8. On 12 April 1985, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 9. On 31 May 1985, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 4 years, 7 months, and 25 days of creditable active service with 52 days of lost time. His service was characterized as UOTHC. 10. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. He provided a case analysis and summary, dated 17 October 2015, which states: a. While the applicant was in the Army he was on the Army Boxing Team. He was placed on temporary duty orders to represent the United States on the American Olympic Boxing Team. Consequently, he suffered numerous episodes of concussion, the most common form of TBI. Sustaining a concussion or any brain injury typically leads to changes in cognitive abilities and control of emotions, mobility, speech, and senses. Left undiagnosed and/or untreated, a TBI can have a huge impact on how a person thinks and acts, and on the person's mental health. Often magnetic resonance imaging and computerized axial tomography scans are normal, although the individual has cognitive problems such as headache, difficulty thinking, memory problems, attention deficits, mood swings, and frustration. Because his magnetic resonance imaging and computerized axial tomography scans were normal, the impact his injuries had on his behavior and decision-making ability were overlooked by his command. Consequently, the effect on the applicant became devastating to his overall career. b. He did not know anything about boxing prior to joining the Army. His command recruited him to become a boxer and released him from his regular duties as a medical supply specialist. He served honorably during his first enlistment and represented the Army as a member of the Army Boxing Team at the 1984 Olympic trials. c. He reenlisted under the belief that he would be allowed to continue to box. He returned to Fort Bragg after reenlisting and participating at the Olympic trials. On 5 October 1984, he suffered a severe concussion during a boxing match and was seen at Womack Army Medical Treatment Facility on 9 October 1984. The attending physician incorrectly noted he had no prior concussions, when he had suffered numerous concussions during the prior 4 years as a member of the Army Boxing Team. d. It was after the 5 October 1984 concussion that his chain of command told him he would no longer be released from duty to box. In November 1984, he received nonjudical punishment for striking his wife in the face with his fist. He contends that part of his punishment was suspended because his chain of command did not entirely believe his wife's story. The chain of command believed him when he told them that if he had hit her as a trained boxer, she would have been messed up and there were no marks on her. He contends he never hit his wife. After the NJP hearing, he felt even more lost and hopeless. He believed his boxing career and military career were over. During a depressed moment, compounded with an isolated and irrational act, he left Fort Bragg and went home. His primary desire was to talk to his father. His father counseled him to return to Fort Bragg and do what was right to the best of his ability. He and his wife divorced in 1990. e. He pursued a career in the restaurant industry. He became a manager of a Kentucky Fried Chicken and ultimately invested in a Kentucky Fried Chicken franchise. He has no police record. f. His request for a discharge upgrade should be granted. On close review and examination of his records, the following equity and medical issues were overlooked and ignored because the long-term and devastating effects of concussion were poorly understood at that time: (1) He completed his first term of enlistment honorably. (2) His ex-wife falsely accused him of hitting her and he was wrongfully punished. (3) After his last concussion, he told his wife he was not going to reenlist again. (4) He was suffering from post-concussion syndrome at the time he was AWOL. He was not thinking clearly. (5) He deeply regrets his choice not to seek counseling and additional medical treatment at the time and accepts accountability for his actions. He now realizes he was in need of additional help through the decision-making process due to the confusion and haze he was experiencing. (6) He agreed to a discharge under the provisions of chapter 10 during a time frame in which he was overwhelmed and desperately in need of help. 12. An advisory opinion was obtained from the Medical Evaluation Board Psychologist at Kimbrough Ambulatory Care Clinic, Fort Meade, dated 30 August 2016, wherein he stated: a. A service treatment record, dated 9 October 1984, provides an incomplete consultation report from the Neurology Clinic which states the applicant was evaluated post-concussion after a scheduled boxing match that occurred 4 days earlier. The consultation reply states "over" at the bottom; however, the reverse side of the page in not available for review. That consultation reply indicated the applicant's neurological functions were within normal limits upon gross screening. That encounter also indicated the applicant had no previous concussions and the applicant believed he had returned back to his usual state of good health. However, in contradictory fashion, the provider's initial statement was that the applicant presented with left facial pain and some confused thinking. b. Common symptoms of post-concussive syndrome include headaches, dizziness, fatigue, irritability, anxiety, insomnia, loss of concentration and inattentiveness, decreased memory, and noise and light sensitivity. The neurological screening identified normal functioning on many of the more common symptoms but could not adequately assess for mood dysregulation and sustained attention. A concussion is a biomechanically induced syndrome of neural dysfunction, which results in vulnerability to a second injury and exacerbation of symptoms. In addition to a number of impairments, the underlying pathophysiology causes acute and then ongoing inflammation that has a deleterious impact on a number of cognitive functions. Sports concussions, especially those that occur while boxing, contribute to repeated mild TBIs, with and without loss of consciousness. c. The timeline for the events that ultimately resulted in the applicant's administrative separation are as follows: concussion on or about 5 October 1984, reported assault with his wife (verbal agreed upon, physical contested) on 15 November 1984, NJP on 29 November 1984, AWOL on 14 December 1984, dropped from the rolls on 14 January 1985, and surrendered to military authorities on 4 February 1985. Additional information included statements from two noncommissioned officers, stating the applicant was not paying attention in formation and a statement from his commander about an outburst the applicant made when being counseled. d. While there is insufficient information in the clinical documentation supplied that the applicant was suffering from a post-concussion syndrome, there is some indication that there was a change in his behavior pattern post the 5 October 1984 boxing match. From that event until his discharge, he displayed errors in judgment, irritability, avoidance behaviors, and decreased ability to remain focused. The neurological screening was not comprehensive and sensitive enough to determine if the changes in behavior were part of the sequelae of the mild TBI. It could be assumed that the suspension of the NJP was due to his prior performance, as well as reasonable doubt as to the circumstances of the reported assault. The applicant had been recommended for promotion to sergeant, but the board results supplied for review are incomplete. e. Under the current standards of care, the applicant would have received more extensive cognitive, neurological, and behavioral screening post-injury. There is also significant research that examines the cumulative effects of sports-related concussions, specifically from boxing. Unfortunately, such protocols were not in place at the time of his separation and the effects of repeated sports-related concussions were not well documented in the literature. f. It is not possible at the present time, given the information provided, to definitively state the maladaptive behaviors on the part of the applicant were a direct result of his assignment to the Army Boxing Team. It is also not clear if he was suffering from a post-concussive syndrome. However, there were annotations on the neurological screening that he had confused thinking and he did demonstrate signs of an acute onset of executive system impairment that could serve as a mitigating factor in his defense. A review of the applicant's accomplishments post-discharge suggest that the mild TBIs he suffered as an Army boxer did not have long-term disabling effects. The fact that he continued in a boxing career post-discharge would better explain any long-term cognitive decline he may experience in the future. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. b. 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. c. 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. 2. Information obtained from the Internet shows the applicant went on to become a professional boxer, winning Golden Gloves tournaments and U.S. Army Boxing Championships, and fighting on Entertainment and Sports Programming Network's "Friday Night Fights" and in Home Box Office pay-per-view events. DISCUSSION: 1. The applicant contends he suffered repeated TBIs over an extended period of time, which resulted in cumulative behavioral and cognitive deficits. 2. The medical advisory official noted it is not possible at the present time, given the information provided, to definitively state the maladaptive behaviors on the part of the applicant were a direct result of his assignment to the Army Boxing Team. It is also not clear if he was suffering from a post-concussive syndrome. However, there were annotations on the neurological screening that he had confused thinking and he did demonstrate signs of an acute onset of executive system impairment that could serve as a mitigating factor in his defense. A review of his accomplishments post-discharge suggests the mild TBIs he suffered as an Army boxer did not have long-term disabling effects. 3. His record of service during his last enlistment included two NJPs and 52 days of lost time. 4. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017797 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2