RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          19 AUGUST 2004
      DOCKET NUMBER:  AR2004101078


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Mr. William Powers                |     |Member               |

      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.  The applicant requests physical disability retirement or separation.

2.  The applicant states that he had a nervous breakdown and was unstable
at the time [of his discharge].

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 March 1970.  The application submitted in this case is
dated     22 November 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.  The applicant enlisted in the Army for three years on 23 June 1967,
completed basic combat training, and in August 1967 was assigned to Fort
Leonard Wood, Missouri for advanced training.

4.  Before a special court-martial which convened at Fort Leonard Wood on
    27 November 1967, the applicant was arraigned, tried, and pled guilty
to larceny, unlawfully entering a dayroom to commit larceny, willfully and
wrongfully damaging vending machines, and AWOL (absent without leave).  He
was sentenced to be confined at hard labor for six months.  On 15 December
1967 the confinement was suspended for five months.  After completing
advanced training he remained assigned to Fort Leonard Wood.  In March 1968
he was assigned to a signal battalion in Korea and in June 1968 to an
engineer company with the 7th Infantry Division in Korea.  In February 1969
he was promoted to pay grade E-4.  He returned to the United States and in
April 1969 was assigned to Fort Eustis, Virginia.

5.  In September 1969 the applicant was assigned to an engineer battalion
in Vietnam.  On 17 November 1969 he received nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for sleeping on his
guard post.  On 17 March 1970 the applicant's commanding officer notified
the applicant that he was initiating proceedings to discharge him from the
Army under the provisions of Army Regulation 635-212 for unsuitability with
a recommendation for a general discharge.  He stated that his action was
based on his [the applicant's] character and behavior disorder.  The
applicant consulted with counsel and waived consideration of his case by a
board of officers.  He stated that he tried to do the best job humanly
possible; however, because of his severe nervous condition, he broke down
and was unable to go on.  He stated that he felt that he deserved an
honorable discharge.

6.  On 17 March 1970 the applicant's commanding officer recommended to the
separation authority that the applicant be discharged for unsuitability.
He stated that the applicant had been assigned to various duty assignments
within the company, serving under different officers and noncommissioned
officers, and that his performance of duty was satisfactory until late
February 1970 at which time the effects of his emotional strain began to be
demonstrated in his performance.  He stated that his military superiors and
the battalion doctor agreed that further rehabilitation efforts would be
detrimental rather than helpful.  He stated that the applicant had been
counseled on 13 different occasions.  He stated that the applicant had
character and behavior disorders resulting in acute emotional instability,
and that his behavior was due to incapacity to become a satisfactory
Soldier.

7.  The applicant's battalion surgeon, in an undated statement, stated that
the applicant had been a patient in the battalion dispensary and had also
been seen by the psychiatrist at the 67th Evacuation Hospital on three
occasions.  He diagnosed the applicant as having an inadequate personality
with acute anxiety state.  He stated that a review of his records indicated
that he had previous behavioral problems prior to his assignment to
Vietnam.  He stated that the applicant had been unable to function in the
battalion because of his emotional state, and that transfer from a line
unit did not help – rehabilitation was impossible because of his extreme
character disorder.  He recommended that he applicant be discharged for
unsuitability. He st

8.  In a 20 March 1970 report, a psychiatrist at the 67th Evacuation
Hospital diagnosed the applicant's condition as emotional instability
reaction, stating that the applicant was not mentally ill, but appeared to
be an emotionally unstable individual who behaved excitably under stress.
He stated that the applicant was mentally responsible, able to distinguish
right from wrong and adhere to the right, and had the mental capacity to
understand board proceedings and participate in his own defense.  He stated
that the applicant met the medical standards for retention, and that he was
psychiatrically cleared for any action deemed appropriate.  He did state
that if separation was implemented, the decision as to whether he should be
eliminated as unfit or unsuitable should be based on an evaluation of his
conduct, and not on [this] psychiatric diagnosis.

9.  On 24 March 1970 the separation authority approved the recommendation
to eliminate the applicant from the Army under the provisions of Army
Regulation 635-212 for unsuitability, and directed that he be issued a
General Discharge Certificate.  He was discharged on 26 March 1970 at Fort
Lewis, Washington.  He had 2 years and 7 months of service, and 64 days of
lost time.

10.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for the administrative separation of enlisted personnel for
unfitness and unsuitability.  It provided, in pertinent part, for the
discharge due to unsuitability of those individuals with character and
behavior disorders and disorders of intelligence as determined by medical
authority.  When separation for unsuitability was warranted an honorable or
general discharge was issued as determined by the separation authority
based upon the individual's entire record.
 
11.  Army Regulation 40-501 states that personality disorders may render an
individual administratively unfit rather than unfit because of physical
disability.  Interference with performance of effective duty in association
with these conditions will be dealt with through appropriate administrative
channels.  It also states that transient, situational maladjustment due to
acute or special stress do not render an individual unfit because of
physical disability, but rather may be the basis for administrative
separation if recurrent and causing interference with military duty.
 
12.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

13.  Army Regulation 40-501, then in effect, provides that for an
individual to be found unfit by reason of physical disability, he must be
unable to perform the duties of his office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's condition as noted by the medical
reports, his continued performance of duty raised a presumption of fitness
which he has not overcome by evidence of any unfitting, acute, grave
illness or injury concomitant with his separation.  The applicant was
emotionally unstable and behaved excitably under stress.  Nonetheless, he
was mentally responsible and was psychiatrically cleared for discharge
proceedings.

2.  The applicant's discharge for unsuitability was proper and in
accordance with the Army regulations in effect at that time.  The applicant
did not have any medically unfitting disability which required physical
disability processing.  Therefore, there is no basis for physical
disability retirement or separation.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         25 March 1973.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE___  ___CG__  ___WP  _  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.



            _____Fred Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101078                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040819                                |
|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]