RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040009085


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 that his general discharge (GD) be corrected to
show he was medically separated or retired.

2.  The applicant states that he was injured while on active duty and still
suffers from back problems.  He states that regulations required him to
undergo a medical evaluation prior to separation but that he was not
afforded one.

3.  The applicant provides a copy of DA Form 3349 (Medical Condition -
Physical Profile Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 March 1976, the date of his discharge.  The application
submitted in this case is dated 19 October 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 service medical records are not available for Board
review.

4.  The applicant's records show he entered active duty on 4 August 1972,
completed training, and was awarded the military occupational specialty 11B
(Light Weapons Infantryman).  He reenlisted on 28 May 1974.

5.  The applicant received nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice, on 25 September 1974, for being AWOL
(absent without leave) from 4 September through 17 September 1974.

6.  On 19 December 1974 he was determined to be physically disqualified for
continued service in the MOS 11B.

7.  On 15 December 1975, the applicant again received NJP for being AWOL
from 2 December through 10 December 1975.
8.  The applicant provided a copy of a DA Form 3349 (Physical Profile),
dated 19 December 1974, indicating he was afforded a permanent L3 profile
due to low back pain.  The form indicates he was medically qualified for
restricted duty.

9.  The applicant was retrained with award of the MOS 68E (Aircraft Rotor
Propeller Repairman) effective 11 June 1975.

10.  An FB Form 1030 (Trial Summary), dated 7 January 1976, indicates that
a general court-martial, in accordance with the applicant's pleas, found
the applicant guilty of breach of peace, assault on an NCO, and assault on
a private. The form indicates that two additional charges, failure to obey
a direct order from a noncommissioned officer (NCO) and failure to obey a
general regulation, were withdrawn in accordance with the applicant's
agreement to plead guilty to the other three charges.  His sentence is
listed as reduction to pay grade E-1 and confinement for 6 months.

11. On 23 March 1976, the applicant's unit commander initiated separation
proceedings under Army Regulation 635-200, chapter 13, for unsuitability
based on a defective attitude and an inability to expend effort
constructively.  The applicant acknowledged this action and waived his
rights to be represented by counsel, to appear before a board of officers,
and to submit a statement on his own behalf.

12.  On 26 March 1976 the separation authority directed the applicant be
discharged for unsuitability and afforded a general discharge.

13.  The applicant was discharged on 30 March 1976 under the provisions of
Army Regulation 635-200, chapter 13 for unsuitability.  The applicant had
3 years, 4 months, and 12 days of creditable service with 105 days of lost
time due to AWOL and confinement.

14.  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.

15.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability; he
must be unable to perform the duties of his office, grade, rank or rating.

16.  Army Regulation 635-40, paragraph 2-2b, as then in effect, provided
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.  The only available evidence that the applicant had any type of medical
problems is the December 1974 physical profile.  At that time the applicant
was found to be qualified for restricted duty.  He was retained on active
duty, successfully completed retraining, and served on active duty in that
MOS.

2.  He continued to perform the duties of his grade and rating for over a
year before he was court-martialed and for an additional 3 months prior to
being discharged.

3.  The applicant has failed to provide any clear and convincing evidence
that he was unable to perform his duties.  His military career was not
ended by an inability to perform his duties due to a medical condition.

4.  Therefore, there is insufficient evidence warrant any correction to the
applicant's records.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 March 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 March 1979.  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

__MKP  _  __REB __  _LMB___  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                 |AR20040009085                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19760330                                |
|DISCHARGE AUTHORITY     |AR635-200. . . . .                      |
|DISCHARGE REASON        |JMB                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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