RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        01 MARCH 2005
      DOCKET NUMBER:  AR20040002584


      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. Walter Morrison               |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 physical disability discharge or
retirement.

2.  The applicant states that he injured himself during basic training, and
during advanced individual training a doctor told him that his career in
the military was over because of his injuries.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), and a copy of a Department of
Veterans Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 June 1992.  The application submitted in this case is
dated            4 June 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 enlisted in the Army for 6 years on 22 January 1992,
completed basic training at Fort Jackson, South Carolina, and in May 1992
was assigned to Fort Sam Houston, Texas for advanced individual training
(AIT).

4.  On 8 May 1992 the applicant was counseled regarding the standards and
policies applicable to his AIT unit, at which time he stated, “I want out.
My family is leaving me.”  He was counseled again on that same date,
indicating that he had been counseled by a chaplain, and stating that he
requested an immediate discharge from the service.  On 15 May 1992 he was
again counseled, this time on the consequences of an administrative
discharge.  The counseling form indicates that the applicant understood the
basis for an administrative separation, opportunity for rehabilitation, and
the consequences of an administrative discharge.  The form shows that the
applicant did not feel additional counseling or rehabilitation would make
him a good Soldier.

5.  On 20 May 1992 the applicant’s commanding officer notified the
applicant that he was initiating action to separate him from the Army under
the provisions of Army Regulation 635-200, paragraph 11-3a, entry level
status performance and conduct, because he lacked the motivation to become
a productive Soldier.

6.  The applicant acknowledged receipt of the notification, stated that he
had been afforded the opportunity to consult with counsel, but declined to
do so.  He stated that he understood the basis for the contemplated action,
its effects, the rights available to him, and the effect of any action
taken by him in waiving his rights.  He declined to submit a statement in
his own behalf.  He stated that he understood that he would be receiving an
uncharacterized discharge.  He stated that he had received adequate
counseling and rehabilitative measures concerning his inability to become a
productive Soldier, and that he did not feel that any amount of counseling
would help him.  He stated that he requested an immediate discharge.

7.  The applicant’s commanding officer recommended to the separation
authority that the applicant be separated from the Army because he was
unwilling or unable to adapt to military life and lacked the motivation to
become a productive Soldier.  On 21 May 1992 the separation authority
approved the recommendation.

8.  The applicant was discharged on 4 June 1992.  The character of his
service was uncharacterized.

9.  The applicant’s medical records are not available to this Board.

10.  On 19 August 2002 the VA awarded the applicant a 20 percent service
connected disability rating for lumbosacral strain, right side, an increase
from the previous 10 percent rating; and continued the 10 percent rating
for degenerative joint disease, status post femoral neck fracture, right
hip.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation provides
for the separation of personnel in an entry level status for unsatisfactory
performance or conduct as evidenced by inability, lack of reasonable effort
or a failure to adapt to the military environment.  These provisions apply
only to individuals whose separation processing is started within 180 days
of entry into active duty.  An uncharacterized separation is mandatory
under this chapter.

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 635-40, in effect at that time, provides 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not submitted any to show
that he was physically unfit for duty when he was discharged in June 1992.
The applicant's 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.

2.  The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.

3.  The award of VA compensation does not mandate disability retirement or
separation from the Army.  The VA, operating under its own policies and
regulations, may make a determination that a medical condition warrants
compensation.  The VA is not required to determine fitness for duty at the
time of separation.  The Army must find a member physically unfit before he
can be medically retired or separated.

4.  The evidence is paramount.  The applicant was not motivated, could not
become a productive Soldier as indicated by his commanding officer, and he
himself indicated that no amount of rehabilitation or counseling would make
him a good Soldier.  He stated that he wanted out of the Army.

5.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  His request for a physical disability
discharge or retirement is denied.


6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 June 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 June 1995.  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

___WM__  ___RD __  ___AU __  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.




                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002584                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050301                                |
|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.                      |                                        |


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