RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 JULY 2004
      DOCKET NUMBER:  AR2004100386


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Roger Able                    |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement or
separation.

2.  The applicant states that he was injured while on active duty.  The
doctors operated on his left wrist and hand and gave him a permanent
profile.  He is not asking that his behavior [while on active duty] be
condoned, only for a fair review. At the time of his injury his service was
honorable.  His discharge should be upgraded to medical for humanitarian
reasons.  He is unable to move his left wrist due to his injury.  The
doctors state that the injury is permanent and irreversible. i

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 January 1984.  The application submitted in this case
is dated     9 October 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 27 January 2000 the Board denied the applicant's request to upgrade
his bad conduct discharge to honorable (AR1999028585).

4.  The applicant served in the Army Reserve and was trained as a cannon
crewman.  He enlisted in the Regular Army for three years on 4 February
1981 and was assigned to Fort Wainwright, Alaska.

5.  On 16 April 1981 the applicant injured himself after falling from the
third floor of his barracks while rappelling from barracks window [He could
not open the door to his room].  He was treated at Basset Army Hospital at
Fort Wainwright for a transcaphoid perilunate obloration (fracture to his
wrist).  His injury was determined to be in line of duty.

6.  On 29 April 1981 he was found guilty by a summary court-martial of
unlawfully striking two enlisted Soldiers on their faces and bodies with
his hands.  He was sentenced to confinement for 25 days.

7.  On 27 March 1982 he was convicted by a general court-martial of two
specifications of disobeying a lawful order of a noncommissioned officer,
one specification of assaulting a noncommissioned officer, and of
assaulting another Soldier.  He was sentenced to confinement at hard labor
for nine months, forfeiture of all pay and allowances for nine months,
reduction to pay grade E-1, and a bad conduct discharge.

8.  On 17 November 1982 he was placed on excess leave without pay pending
appellate review of his case.  Prior to going on excess leave, on 27
October 1982, he signed a statement to the effect that he understood that
he was not required to undergo a medical examination for separation for
active duty; however he could request one.  He stated that he understood
that if he did not elect such an examination, his medical records would be
reviewed by a physician, and if the review indicated that an examination
should be accomplished, he would be scheduled for an examination.  He also
stated that he understood that he was prohibited from receiving payment of
disability retired pay if he incurred a physical disability while in an
excess leave status.  He stated that he did not desire a separation medical
examination.

9.  On 3 August 1983 the Court of Military Review affirmed the finding of
guilty, but modified the sentence to show only forfeiture of $551.00 pay
per month for nine months, confinement at hard labor for nine months,
reduction to pay grade E-1, and a bad conduct discharge.

10.  On 14 December 1983 the sentence having been confirmed, the
appropriate authority ordered the bad conduct discharge to be duly
executed.  The applicant was discharged with a bad conduct discharge on 10
January 1984.

11.  Army Regulation 635-40 states in pertinent part 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 can no longer continue to reasonably perform because of a
physical disability incurred or aggravated in service.

12.  That paragraph goes on to say that when a member is being separated by
reason other than physical disability, his continued performance of duty
creates a presumption of fitness which can be overcome only by clear and
convincing evidence that he was unable to perform his duties or that acute
grave illness or injury or other deterioration of physical condition,
occurring immediately prior to or coincident with separation, rendered the
member unfit.

13.  Army Regulation 635-40, provides that a member who is charged with an
offense for which he could be dismissed or given a punitive discharge may
not be
referred for, or continue, disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service was not interrupted because of his wrist
injury, but because of his conviction by a court-martial resulting in his
bad conduct discharge.  Nevertheless, he could not be referred for
disability processing.  He is not entitled to physical disability
retirement or separation (medical discharge).

2.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           9 January 1987.  However, the applicant did
not file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RA __  ___JA___  ___MT __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ______Roger Able_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100386                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040715                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]