SAMA-RB 23 January 201 7 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150013515 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 1O January 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 23 May 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: CF: ( ) OMPF BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013515 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013515 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. BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013515 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 under other than honorable conditions (UOTHC) discharge to either general, honorable, or a medical discharge. 2. He states when he was stationed in Korea, he contracted tuberculosis (TB) which resulted in the first sergeant (1SG) treating him unfairly because he thought he was faking his condition. The 1SG pushed him out of the Army. He provides a chronological history of what he recalls occurred during his military service from the time he entered basic training until his discharge. He offers he contracted TB one month after arriving in Korea, and a month later he contracted typhoid fever. Because of his condition, he spent a lot of time on bed rest and in and out of the hospital. When he was released from the hospital, he would go to the village and drink. During one of his visits to the hospital, the doctor informed him that he could be discharged from the Army and he agreed. He believed he would be released on a medical discharge because of his TB. He has been diagnosed with chronic obstructive pulmonary disease (COPD) and although he does not need medical care from the military, he would like to show off his discharge certificate. 3. He provides: * self-authored statement * two Clinical Record Consultation Sheets * five supporting statements * TB Test Clearance and Documentation Form 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 22 October 1965. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Korea from 8 March 1966 to 4 February 1967. 4. His disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on six separate occasions for the following offenses: * 2 December 1965, for failing to obey a lawful order by an Acting Trainee Field 1SG on 27 November 1965 * 20 December 1965, for being absent without authority from his unit from 1600 to 2230 hours on 18 December 1965 * 23 December 1966, for missing bed check on 22 December 1966 * 28 December 1966, for missing bed check on 27 December 1966 * 4 January 1967, for missing bed check on 2 January 1967 * 11 January 1967, for committing a pass violation (off post) on 10 January 1967 5. On 16 July 1966, a summary court-martial convicted him of being absent without leave (AWOL) from on or about 20 to 29 June 1966. The summary court-martial sentenced him to a forfeiture of $50.00 pay and confinement at hard labor for 30 days. 6. On 1 September 1966, a special court-martial convicted him of failing to go at the time prescribed to his appointed place of duty at 0600 hours and for willfully disobeying a lawful order from his commanding officer on or about 16 August 1966. The special court-martial sentenced him to a forfeiture of $69.90 pay for 3 months and confinement at hard labor for 3 months. On 10 October 1966, so much of the sentence in excess of confinement at hard labor for 3 months and a forfeiture of $64.00 pay for 1 month was set aside. 7. On 9 December 1966, a summary court-martial convicted him of wrongfully and falsely using, with the intent to deceive, a military pass. The summary court-martial sentenced him to a forfeiture of $25.00 pay. 8. On 12 July 1966, the applicant underwent a psychiatric evaluation. The findings of the evaluation are as follows: a. He was diagnosed with immature personality, passive-aggressive type, chronic, moderate, manifested by obstructionism, negativism, use of somatic complaints to manipulate his environment, and impaired judgment and insight. He was considered mentally responsible for his actions, knew the difference between right and wrong, and could adhere to the right. There was no mental disease present to warrant consideration of separation under the medical provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. The psychiatrist noted the applicant was said to be on prophylactic treatment for possible TB on the basis of conversion of skin tests for TB from negative to positive. However, he stated an official medical ruling must be made as to the presence or absence of TB and the applicant must be able to satisfactorily pass a final physical examination for separation. In the event that he is medically cleared, a psychiatric clearance is granted for administrative separation from the service by reason of the above diagnosis which makes him unsuitable. 9. On 28 July 1966, a medical officer stated: a. The applicant was seen on routine sick call ten times since 24 May 1966. He had numerous complaints, but his main complaint was abdominal cramps and diarrhea. He also complained of headaches, light-headedness, and that light hurt his eyes. The applicant had a complete gastrointestinal evaluation and there was no pathologic condition found to explain his symptoms. He had also been examined by ophthalmologist who confirmed the presence of his previously diagnosed eye condition of esotrophia and amblophia exanopsia of the left eye. This condition had not changed since his induction into the armed forces at which time he met the induction standards. b. During the period that the applicant's gastrointestinal complaints were being evaluated, he was found to have converted his skin test for TB from negative to positive indicating a recent infection of TB bacillus. Chest films showed no evidence of TB and the applicant's sputum was cultured for the presence of TB bacillus. The results were not available since the method required approximately 6 weeks. The applicant was being treated with 600 milligrams of Isoniazid (INH) and 100 milligrams of pyridoxine daily. Treatment was to continue for 1 year and he should also have a chest film completed every 3 months for 1 year. c. The applicant was referred to the neuro-psychiatric clinic because of many medical complaints in the face of negative physical and laboratory findings. He was also referred to the clinic because he had been involved in many incidents which indicated he had a personality behavior disorder. On 21 July 1966, he was evaluated in the neuro-psychiatric clinic and diagnosed with passive aggressive personality and poor motivation for military service. The psychiatrist recommended separation from the service on a psychiatric basis. 10. On 24 September 1966, the unit commander recommended the applicant be separated from the Army under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. He stated the discharge was recommended because the applicant had shown, in only 4 months in the unit, that he was completely unfit for duty of any type. His record was characterized by constant shirking of duty, complete irresponsibility, and a total lack of response to counseling. 11. The applicant consulted with military counsel. After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he requested consideration of his case by a board of officers, personal appearance before a board of officers, and counsel. 12. On 25 November 1966, the applicant appeared before an administrative separation board. The board carefully considered the evidence concerning the applicant and found that he was undesirable for further retention in the military service because of unfitness due to habits and traits of character manifested by repeated AWOL's and continuous shirking of his duties. In view of their findings, the board recommended the applicant be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate. 13. On an unknown date, the Commanding General approved the findings of the administrative board and directed the applicant be issued an Undesirable Discharge Certificate. 14. A Standard Form 89 (Report of Medical History) shows on 19 January 1967, the applicant underwent a separation medical examination. Item 20 (Have You Ever or Have You Now) "had TB" the applicant checked the "No" block. 15. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under conditions other than honorable on 6 February 1967 and issued an Undesirable Discharge Certificate. The reason and authority for discharge was listed as AR 635-212. He completed 11 months and 14 days of total credible service with 121 days of lost time. 16. The applicant provides: a. A Consultation Sheet, dated 14 June 1966, that states, in pertinent part, that he was taking INH for TB. b. A TB Test Clearance and Documentation Form that shows on 23 March 2015, his TB test resulted in a positive reading. c. On 19 May 2016, a medical doctor with Pulmonary Disease and Critical Care Medicine, said the applicant was found to have a positive TB skin test and was treated by the Department of Veterans Affairs (VA) in June 1966. He received INH and pyridoxine, which were documented in the VA clinic. d. On 24 May 2016, a medical doctor with Santa Barbara Internal Medicine Group clarified the applicant's past medical history. He said during the period the applicant served in the military, he tested positive for TB. He was treated for a latent TB infection with antibiotics. e. The other supporting statements submitted by the applicant speak highly of the applicant's dependability and dedication to the community. A fellow comrade stated he has known the applicant for over 30 years and he has built an excellent rapport in the community and is always willing to assist anyone in need. The American Legion Post 49 Commander stated the applicant has volunteered for many events as well as having marched in numerous parades. The applicant's sister stated he is very passionate when it comes to those in need and will stop whatever he is doing to assist in whatever way he can. 17. On 14 February 1968, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade. The ADRB determined the applicant was properly discharged. 18. On 6 October 2016, the ABCMR obtained an advisory opinion from the Senior Medical Advisor, Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for an upgrade. He states a. The applicant met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) chapter 3, and the provisions set forth in AR 635-40 in effect at the time. There is no evidence or basis within the available documentation that the applicant's latent TB infection (i.e., positive PPD test) with negative TB smear/culture and negative/normal chest-x-ray treated with “INH and pyridoxine (Vitamin B6)” are the cause of his current COPD, which is most commonly associated with a significant history of smoking. b. There is no clear evidence that the applicant's diagnosis of passive aggressive personality was a personality disorder and not an adjustment reaction to circumstances beyond his control upon arrival in Korea. The development of hemorrhoids before age 20 is unusual, with peak incidence between ages 45 to 65. The applicant had a history of significant diarrhea, but symptomatic large external hemorrhoids requiring surgical treatment at 18 years of age, even with diarrhea (and no history or evidence of chronic or other gastrointestinal disease at the time) is an atypical history. c. A review of the available documentation found no clear evidence of a medical disability or condition which would support a change to the character or reason for the applicant's discharge in this case. There may be and likely were mitigating mental or behavioral health reasons affecting the applicant's conduct during or near the end of basic training (dizziness with chronic anxiety) and during his first few months of service in Korea, along with the physical condition (hemorrhoids), at the time of his discharge that were not considered or addressed during the court-martial and/or at his separation proceedings. 19. On 9 October 2016, the advisory opinion was forwarded to the applicant for acknowledgement and/or a response. No response was received. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. It stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. AR 635-200 (Personnel Separations – Enlisted Personnel) provides policy and procedures for the separation of enlisted personnel. a. 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. 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. 3. Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication the individual is fit. DISCUSSION: 1. The evidence of record shows on 12 July 1966, the applicant underwent a psychiatric evaluation in which he was diagnosed with immature personality, passive-aggressive type, chronic, moderate, manifested by obstructionism, negativism, somatic complaints to manipulate his environment, impaired judgment, and insight. He was considered mentally responsible for his actions and he was psychiatrically cleared for an administrative separation. 2. The evidence further shows he appeared before an elimination board that carefully considered the evidence and found he was undesirable for further retention in the military service because of unfitness due habits and traits of character manifested by repeated AWOL's and continuous shirking of his duties. 3. A review of the applicant's case by the ARBA Senior Medical Advisor found no clear evidence of a medical disability or condition, which would support a change to the applicant's discharge. Additionally, there is no clear evidence that the applicant's diagnosis of passive aggressive personality was a personality disorder and not an adjustment reaction to circumstances beyond his control upon arrival in Korea. 4. No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received while in the service. Absent evidence to the contrary, it appears the applicant was physically fit at the time he was released from active duty on 6 February 1967. 5. The available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. 6. His disciplinary history shows he received six NJPs, three courts-martial, and he had 121 days of lost time with less than 1 year of credible service. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel required for a higher characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013515 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013515 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2