RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2005
      DOCKET NUMBER:  AR20040007171


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 under honorable conditions
discharge be changed to a medical discharge.

2.  The applicant states, in effect, that a document showing mental health
reasons for his discharge was placed in his company records prior to his
separation.  He further states that the document was not placed with his
elimination proceedings.

3.  The applicant provides no documentation to support this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 December 1982.  The application submitted was received at
this office on 14 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 enlisted in the Regular Army on 8 April 1981 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 95B (Military Police).

4.  On 15 April 1982, the applicant was counseled for being disrespectful
to his Platoon Sergeant.

5.  On 27 August 1982, the applicant was counseled for being relieved as
driver for the Provost Marshal.

6.  On 9 September 1982, the applicant was counseled for failing to get a
haircut and mustache trim.

7.  On 10 September 1982, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure
to be at his appointed place of duty.
8.  On 1 October 1982, the applicant was counseled for violation of 24
hours quarters.

9.  On 4 October 1982, the applicant was counseled for failing to be at his
appointed place of duty.

10.  On 12 November 1982, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of Army
Regulation 635-200 (Personnel Separations), chapter 13.  The reason cited
by the commander was the applicant’s frequent incidents of counselings and
receiving an Article 15.

11.  On 12 November 1982, the applicant was advised by consulting counsel
of the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-200.  The applicant
submitted a statement on his own behalf.

12.  The applicant stated, in effect, that during the 17 months he had been
attached to his unit he received one Article 15 and one counseling
statement.  He continues that he had counseling statements which he never
saw but were in his elimination packet.  He further stated that his platoon
sergeant led his company commander to believe that he was not capable of
being attached to the military police company and that the commander backed
his platoon sergeant on the separation.

13.  The applicant's medical records are not available.

14.  A DA Form 2A (Personnel Qualification Record), dated 25 October 1982,
shows the applicant's physical profile was 111111.

15.  On 18 November 1982, the appropriate authority approved the
applicant's discharge under the provisions of Army Regulation 635-200
chapter 13.  On 6 December 1982, he was discharged by reason of
"unsatisfactory performance" with a characterization of under honorable
conditions after completing 1 year, 7 months and 29 days of active service
with no time lost.

16.  A State of California - Health and Welfare Agency, Department of
Social Services document shows that, on 14 October 1987, the applicant had
filed for disability benefits for the alleged impairment of schizophrenia.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 of that regulation provides,
in pertinent part, that a member may be separated when it is determined
that he or she is unqualified for further military service because of
unsatisfactory performance.  Commanders will separate a Soldier for
unsatisfactory performance when it is clearly established that, in the
commander’s judgment, the Soldier will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
Soldier.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.

19.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1"
under all factors indicates that an individual is considered to possess a
high level of medical fitness and, consequently, is medically fit for any
military assignment.  Numerical designators "2" and "3" indicate that an
individual has a medical condition or physical defect which requires
certain restrictions in assignment within which the individual is
physically capable of performing military duty.

DISCUSSION AND CONCLUSIONS:

1.  The State of California - Health and Welfare Agency, Department of
Social Services document on file in the applicant's record shows that he
filed for disability benefits for an alleged impairment of schizophrenia
but the letter is dated more than five years after his discharge.  There is
no evidence in his records that shows the alleged disorder rendered him
mentally incapable or irresponsible at the time of the misconduct which led
to his discharge.

2.  There is no evidence of record and the applicant has not provided
evidence that shows he was diagnosed with schizophrenia.  There is no
medical evidence of record that shows the applicant had any illness or
medical problem prior to his discharge on 2 December 1982.  Prior to his
separation records show that his physical profile was 111111.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 December 1985.  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

__SLP    _  __ PHM       DJA _     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.




                                       ___ Shirley L. Powell___
                                                  CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007171                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |3 May 2005                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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