RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 June 2005
      DOCKET NUMBER:  AR20040007115


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, that his undesirable discharge (UD)
of
30 April 1968 be changed to a medical discharge.

2.  The applicant states, in effect, that his Army doctor indicated he was
a schizoaffective personality.

3.  The applicant provides a self-authored letter, doctor’s letter and
progress notes from the Oklahoma Department of Corrections with medication
records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 April 1968.  The application submitted in this case is
dated
1 September 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’s record shows that he was inducted into the Army and
entered active duty on 23 May 1967.  He was trained in, awarded and served
in military occupational specialty (MOS) 94A (Cook), and the highest rank
he attained while serving on active duty was specialist four (SP4).  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

4.  The record does reveal a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) and his conviction by a
special court-martial (SPCM).
5.  On 5 December 1967, the applicant accepted NJP for being absent from
his unit on 4 December 1967.  His punishment for this offense included a
reduction to private first class (suspended), a forfeiture of $28.00 and 14
days restriction and extra duty.

6.  On 29 March 1968, a SPCM convicted the applicant of violating Article
128 of the UCMJ by committing assault, and violating Article 86 of the UCMJ
by being absent without leave (AWOL) from 8 through 11 January 1968, and
from
22 January through 12 February 1968.  The resultant sentence included
confinement at hard labor for six months and a forfeiture of $68.00 per
month for six months.

7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
Report of Medical Examination (SF 88) documenting the applicant’s
separation physical examination.  The examining physician noted the
applicant had been diagnosed with a schizoaffective personality at the
community mental health service on
3 April 1968, and finally assigned the applicant a physical profile of
111111 and a physical category of A.  The physician found no physical or
mental conditions that would have warranted the applicant’s separation
processing through medical channels and concluded the applicant was fully
qualified for separation/retention.

8.  The applicant’s MPRJ is void of a separation packet containing the
specific facts and circumstances surrounding his separation processing.
However, it does include a DD Form 214 that shows the applicant was
separated with an UD on 30 April 1968, under the provisions of Army
Regulation 635-212, for unfitness. The separation document also shows he
completed a total of 11 months and
29 days of creditable active military service and accrued 40 days of time
lost due to AWOL and confinement.

9.  The applicant provides a doctor’s letter, dated 24 June 2004.  This
letter confirms the doctor initially evaluated the applicant on 27 May 2004
and has followed-up on two separate occasions since that time.  The letter
also indicates the applicant is being treated from a schizoaffective
disorder, borderline intellectual functioning, coronary artery disease,
severe psychosocial mental illness.  The applicant also provides extensive
progress notes from the Oklahoma Department of Corrections, dated between
1998 and 2000, which speak to these conditions.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.
11.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) 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 or her office, grade, rank, or rating.


13.  Chapter 3 of the disability regulation provides guidance on
presumptions of fitness.  It states that the mere presences of an
impairment does not, of itself, justify a finding of unfitness because of
physical disability.  In each case, it is necessary to compare the nature
and degree of physical disability present with the requirements of the
duties the Soldier reasonably may be expected to perform because of his or
her office, grade, rank, or rating.  Separation by reason of disability
requires processing through the PDES.

14.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of Soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier against the physical
requirements of the Soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a Soldier to be separated or retired because of physical
disability.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received a medical
discharge based on his schizoaffective personality and the supporting
documents he submitted were carefully considered.  However, there is
insufficient evidence to support the applicant’s claim.

2.  The evidence of record confirms the applicant underwent a final
separation physical and mental examination during which his schizoaffective
condition was considered.  However, the examining physician concluded the
applicant suffered from no physical or mental conditions that warranted his
processing for separation through medical channels.  Finally, subsequent to
this examination, the applicant was determined to be medically qualified
for retention/separation and cleared for separation by competent medical
authority.

3.  The applicant’s record is void of the specific facts and circumstances
surrounding his discharge processing.  However, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, Government
regularity in the discharge process is presumed.

4.  The record also confirms that the applicant was discharged under the
provisions of Army Regulation 635-212, for unfitness.  This separation is
supported by the disciplinary history documented in the applicant’s record.
 In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 April 1968.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 April 1971. However, he failed to 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

___RLD _  ___TAP _  __MJF__  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.




            ____Robert L. Duecaster___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007115                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/23                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1968/04/30                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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