RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         08 FEBRUARY 2004
      DOCKET NUMBER:  AR20040000638


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Ms. Susan 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.  In effect, the applicant requests that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to remove “Misconduct,”
as the narrative reason for his separation from Active/Guard Reserve (AGR)
status, that he receive credit (all time lost), and that his record be
corrected to show that he received a medical discharge.

2.  The applicant states that he was wrongfully discharged, that he did not
receive due process, and that he did not receive a physical or mental
evaluation.
He states that he should never have been discharged without having had a
medical evaluation.

3.  The applicant provides a 15 March 2004 statement from the Department of
Veterans Affairs (VA), a 28 September 1988 memorandum requesting that the
applicant receive a follow-up medical examination because of potential Lyme
disease, a copy of a DA Form 2173 (Statement of Medial Examination and Duty
Status), dated 20 July 1988, statements and medical documents thereto, a
copy of a 13 September 2000 letter of support addressed to this Board, a
copy of a      5 September 2001 memorandum of support, a copy of a 10
November 1993 recommendation that the applicant be separated for
misconduct, a copy of a      29 April 1994 memorandum of support, and a
copy of an 18 September 1994 brief by the applicant’s then counsel.  In
addition, forwarded with his request, is a 5 May 2004 letter on his behalf
submitted by a Member of Congress (MC).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 April 1994.  The application submitted in this case is
dated        26 April 2004.

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 limitations 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 was inducted into the Army on 29 June 1972, completed
training, and in November 1972 was assigned to a cavalry squadron in
Germany. In the span of five months, from August 1973 to February 1974, the
applicant received nonjudicial punishment under Article 15, Uniform Code of
Military Justice (UCMJ) on five occasions for showing contempt toward a
noncommissioned officer (NCO), failing to obey a lawful order, wrongfully
and unlawfully using hashish, assaulting a noncommissioned officer,
wrongfully engaging in a fist fight with another Soldier, and wrongfully
appropriating a government vehicle.

4.  The applicant returned to the United States and was released from
active duty with an honorable characterization of service on 24 June 1974.


5.  On 17 August 1984 the applicant enlisted in the Illinois Army National
Guard for one year.  The applicant’s DD Form 214 shows that he entered on
active duty, apparently in an AGR status, on 2 September 1986 and had
continuous service until his release from AGR status in 1994.  His awards
during this service include the Army Commendation Medal, the Army
Achievement Medal, the Army Good Conduct Medal, the Army Reserve Components
Overseas Training Ribbon, and the Army Reserve Components Achievement
Medal.  He completed the Basic NCO Course (BNCOC), and attained the rank of
staff sergeant.

6.  A 24 March 1989 medical report shows that the applicant became ill with
a flu-like illness the past July while on maneuvers in Wisconsin, developed
a rash, and had a Lyme test taken.  That report shows that he had
persistent problems thereafter.  The examining physician stated that his
symptoms were compatible with, but not strongly suggestive of, Lyme
disease, and recommended that the best way to settle the issue was to give
the applicant a therapeutic trial, with a   medicinal dosage for one month.


7.  A 21 April 1989 medical report indicates that the applicant’s symptoms
had almost totally resolved.  The examining physician indicated that the
issue of Lyme disease was resolved.

8.  A 9 December 1990 report of medical examination shows that the
applicant was medically qualified for retention with a physical profiles
serial of 1 1 1 2 1 1.  In the report of medical history that he furnished
for the examination, the applicant stated that he was in good health and
taking no medications.

9.  On 10 November 1993 the applicant’s commanding officer recommended that
the applicant be separated for drug abuse.  A board of officers was
appointed to hear the charge against the applicant.  He appeared before the
board and was represented by counsel.  The board determined that the
applicant did wrongfully use marijuana, and recommended that he be
discharged from the Illinois Army National Guard for misconduct with a
General Discharge, with the stipulation that his discharge be suspended as
the convening authority may determine.  The convening authority approved
the recommendation on 29 May 1994, except for that portion regarding the
suspension of his discharge, which was not approved.

10.  The applicant was released from an AGR status for misconduct on 17
April 1994, and received a general, under honorable conditions
characterization of service.  On 17 April 1994 he was discharged from the
Illinois Army National Guard.

11.  On 26 June 1995 the applicant appealed to the Army Discharge Review
Board (ADRB) requesting that his discharge be upgraded to honorable and
also requesting that he be reinstated [in the Army National Guard].  He
alleged that the discharge proceedings were wrongful, that there was no
medical treatment program or rehabilitation follow-up, and alleged
discrimination.  The applicant made a personal appearance before the ADRB,
and on 16 September 1997, the ADRB approved that portion of his request
pertaining to a discharge upgrade to an honorable discharge.  The reason
for his discharge was unchanged. The applicant was issued a DD Form 214
reflecting the upgrade of his discharge.

12.  On 7 August 1998 the applicant applied to this Board, requesting that
the reason for his discharge, “Misconduct,” be removed from his DD Form
214, that his reentry code (RE code) on his DD Form 214 be corrected to RE-
1 so that he could be reinstated, and that his DD Form 214 show that he had
16 years of service.

13.  On 27 May 1999 the Board denied his request to change the reason for
his discharge, and to correct his reentry code, but did correct his DD Form
214 to reflect all of his inactive service, and did correct his separation
code.  The Board noted that the applicant was separated under applicable
provisions of National Guard Regulation 600-200 and Army Regulation 135-
178, for misconduct, a commission of which normally calls for a discharge
under other than honorable conditions.

14.  On 11 June 1999 the applicant requested reconsideration.  On 24 June
1999 he was informed that since he had provided no new evidence or
argument, his request did not warrant consideration by the Board.

15.  On 1 June 2000 the applicant again requested reconsideration – that
the misconduct be removed from his DD Form 214, that his RE code be changed
to RE-1, that he receive severance pay, and that he receive a 20 year
letter or reinstatement.  He was again informed that because he had not
submitted any new evidence or argument, there was no basis for resubmitting
his request to the Board.

16.  He requested reconsideration again.  On 4 January 2001, he was
informed that because more than one year had elapsed since the original
consideration of his case and that his application did not meet certain
criteria, there was no basis for resubmitting his request to the Board.
His request was returned without action.  A copy of that response was
forwarded to a Member of Congress.

17.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a soldier’s medical status and duty limitations insofar as duty is
affected by the soldier’s status.  A decision is made as to the soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the Medical Evaluation Board (MEB) determines the soldier
does not meet retention standards, the board will recommend referral of the
soldier to a Physical Evaluation Board (PEB).

18.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of soldiers who are referred to
the board; to evaluate the physical condition of the soldier against the
physical requirements of the soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the soldier; and to make
findings and recommendation to establish eligibility of a soldier to be
separated or retired because of physical disability.

19.  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 they can no longer continue to reasonably perform because
of a physical disability incurred or aggravated in service.

20.  Army Regulation 635-40, provides that an enlisted Soldier may not be
referred for, or continue, physical disability processing when action has
been started under any regulatory provisions which authorizes a
characterization of service of under other than honorable conditions.

21.  Army Regulation 15-185 sets forth procedures for processing requests
for correction of military records.  A recent court decision ordered the
deletion of paragraph 2-15b which applies to requests for reconsideration.
The effect of this court decision now permits an applicant to request
reconsideration of an earlier ABCMR decision if the request is received
within one year of the ABCMR's original decision and it has not previously
been reconsidered.  Such requests must provide new evidence or argument
that was not considered at the time of the ABCMR's prior consideration.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the narrative reason, “Misconduct”
for his discharge, request that he be given a reentry code of RE-1, be
credited with      16 years of service, and that he be reinstated in the
Army National Guard, was denied on 27 May 1999.  He has since requested
reconsideration on three occasions.  His initial request was heard over
five years ago.  Consequently, there is no further ABCMR action
contemplated regarding these issues.  The applicant has exhausted all
administrative remedies in these matters, and he is not eligible for
further reconsideration by the Board.  Since these issues will not be
addressed by the Board, by the same token, his request for credit (time
lost) will likewise not be addressed.


2.  There is no evidence and the applicant has not provided any to show
that he was medically unfit at the time of his discharge on 17 April 1994.
Furthermore, the applicant could not be processed for physical disability
separation because of the nature of his offense, which could have resulted
in a discharge under other than honorable conditions.

3.  Consequently, the applicant is not entitled to a physical disability
discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 April 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          16 April 1997.  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

___MP __  ___SP __  ___SP __  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.




                                  ____Margaret Patterson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000638                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050208                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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