RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 June 2005
      DOCKET NUMBER:  AR20040007347


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 general, under honorable
conditions discharge (GD) be changed to a medical discharge, and that all
documents related to violations he committed while serving on active duty
be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he got into a “Catch-22” when he was
barred from reenlistment and received a fit for duty determination.  He
claims he was barred from reenlistment due to a medical profile because the
Army was undergoing mandated cuts from Congress.  As a result, he was
denied a medical separation.

3.  The applicant refers to a Department of Veterans Affairs (VA) medical
records, but provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 November 1989.  The application submitted in this case
was received on 20 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 he served on active duty in the Regular
Army (RA) for 3 years and 3 months from 6 July 1979 through 5 October 1982,
at which time he was honorably separated at the expiration of his term of
service.  The separation document (DD Form 214) issued to him for this
period of active duty service shows he attained the rank of specialist four
(SP4) on 1 November 1982, and that he held that grade on the date of his
separation.  It also shows that he was trained in, awarded and served in
military occupational specialty (MOS) 52C (Utilities Equipment Repairer),
and that he earned the following awards:  Army Service Ribbon and Expert
Qualification Badge with Rifle and Hand Grenade Bars.

4.  On 14 January 1981, the applicant reenlisted in the RA, reentered
active duty and began the enlistment under review.  He retained MOS 52C and
was assigned overseas to Germany.  The record documents no acts of valor,
significant achievement, or service warranting special recognition.  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) on two separate occasions.

5.  On 1 June 1989, the applicant accepted NJP for disobeying a lawful
order, wrongfully possessing hashish and wrongfully using hashish.  His
punishment for these offenses was reduction to private first class (PFC)
and a forfeiture of $464.00 per month for two months.

6.  On 3 October 1989, he accepted NJP for wrongfully using marijuana.  His
punishment for this offense included a reduction to private/E-1 (PV1),
forfeiture of $345.00, and 45 days of extra duty.

7.  On 10 September 1989, the applicant underwent a mental status
evaluation.  The examiner found the applicant was normal and had the mental
capacity to understand and participate in separation proceedings.  He also
completed a separation physical examination.

8.  The Report of Medical Examination (SF 88) on file in the applicant’s
record shows he received all normal ratings in all clinical evaluation
areas.  It also confirms he was given a physical profile of 111111 and
physical category of A, and that he was medically cleared for
retention/separation by competent medical authority.  There is no medical
evidence on file that indicates the applicant suffered from a physically
disqualifying condition that would have warranted his separation processing
through medical channels.

9.  On 16 October 1989, a bar to reenlistment was imposed on the applicant.
 This action was based on the Article 15s the applicant received on 1 June
and
3 October 1989.

10.  On 18 October 1989, the unit commander notified the applicant of his
intent to process the applicant for separation under the provisions of
chapter 14, Army Regulation 635-200, by reason of misconduct (commission of
a serious offense) based on the offenses he committed that resulted NJP
action.  The applicant completed an election of rights and chose to waive
his right to consideration of his case by an administrative separation
board, and his right to consulting counsel.  He also elected not to submit
a statement in his own behalf.

11.  On 23 October 1989, the separation authority approved the applicant’s
separation under the provisions of chapter 14, Army Regulation 635-200, by
reason of misconduct (commission of a serious offense) and directed that he
receive a GD.  On 16 November 1989, the applicant was discharge
accordingly.

12.  The DD Form 214 issued to the applicant upon his 16 November 1989
separation confirms he completed 2 years, 10 months and 3 days of his
current enlistment, and a total of 6 years, 1 month and 3 days of active
military service.

13.  On 5 December 1995, the Army Discharge Review Board (ADRB), after
carefully considering the applicant’s case, concluded that his discharge
was proper and equitable, and it voted to deny his request to upgrade his
discharge.

14.  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.


15.  Chapter 3 of the same regulation provides guidance on presumptions of
fitness.  It states that the mere presence of 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.

16.  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.
17.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  An Army
disability rating is intended to compensate an individual for interruption
of a military career after it has been determined that the individual
suffers from an impairment that disqualifies him or her from further
military service.  The VA, which has neither the authority, nor the
responsibility for determining physical fitness for military service,
awards disability ratings to veterans for conditions that it determines
were incurred during military service and subsequently affect the
individual’s civilian employability.

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  An under other than honorable
conditions discharge is normally considered appropriate for members
separated under these provisions; however, an honorable or general
discharge may be authorized.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the Army Board for Correction of
Military Records (ABCMR) should commence on the date of final action by the
ADRB.  In complying with this decision, the ABCMR has adopted the broader
policy of calculating the 3-year time limit from the date of exhaustion in
any case where a lower level administrative remedy is utilized.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should receive a medical separation
and that all records of his misconduct should be removed form his OMPF were
carefully considered.  However, there is an insufficient evidentiary basis
to support these claims.

2.  The evidence of record confirms the applicant was physically and
mentally qualified for retention/separation, as determined by competent
medical authority at the time of his separation.  There is no evidence of
record, and the applicant has failed to provide independent evidence, to
show that he suffered from a mentally or medically disabling condition that
would have mitigated his misconduct, or supported his separation processing
through medical channels.

3.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s use of illegal drugs and his other acts of misconduct clearly
diminished the overall quality of his service below that meriting an
honorable discharge.

4.  The applicant’s VA medical records were not provided to the Board for
review. However, the applicant’s reference to these files was noted.  The
applicant is advised that the award of a VA rating does not establish
entitlement to medical retirement or separation.  The VA is not required to
find unfitness for duty.  Operating under its own policies and regulations,
the VA awards ratings because a medical condition is related to service,
i.e., service-connected.

5.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings.  The Army must find unfitness for duty at the
time of separation before a member may be medically retired or separated.
In this case, the applicant is properly being evaluated, treated and
compensated for his service connected back condition by the VA in
accordance with the applicable laws and regulations.

6.  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.
7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1995, the date the ADRB
last reviewed his case.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 4 December 1998.  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

___MKP_  __PHM __  __LMD__  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 K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007347                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/06/21                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1989/11/16                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct (Comm of Serious Offense)    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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