RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 July 2005
      DOCKET NUMBER:  AR20040009195


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, compensatory damage payment.

2.  The applicant states, in effect, that he suffered from racism and was
disliked due to his ability to out-perform his contemporaries.  He also
claims that while he was on active duty, he suffered from a back injury and
from an illness related to the poisoning of his drink.  He finally states
that based on these facts, he should receive monetary compensation due to
his inability to sustain employment since his discharge.

3.  The applicant provides a letter from a Department of Veterans Affairs
(VA) psychiatrist in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 November 1976.  The application submitted in this case
was received 1 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 record shows he initially enlisted in the Regular Army
and entered active duty on 24 January 1973.  He was trained in, awarded and
served in military occupational specialty (MOS) 11C (Infantryman Indirect
Fire Crewman).

4.  On 24 October 1974, he was honorably discharged for the purpose of
immediate reenlistment after completing 1 year, 9 months and 1 day of
active military service; and on 25 October 1974, he reenlisted for six
years.

5.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 9 (Awards, Decorations and Campaigns), that he earned the National
Defense Service Medal (NDSM), Army of Occupation Medal(AOM)-Berlin and Army
Good Conduct Medal (AGCM) during his active duty tenure.
6.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1
shows he was promoted to specialist four (SP4) on 12 March 1973, and that
this is the highest rank he held while serving on active duty.  Item 18
also shows he was reduced to private first class (PFC) for cause on 7 June
1976.

7.  The applicant’s disciplinary history 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.  On 18
April 1975, the applicant accepted NJP for sleeping on guard duty.  His
punishment for this offense included a suspended reduction to PFC.

8.  On 4 June 1976, the applicant accepted NJP for being absent from his
appointed place of duty without proper authority.  His punishment for this
offense included a reduction to PFC.

9.  On 28 September 1976, the applicant completed a separation physical
examination.  The Report of Medical Examination (SF88) on file confirms he
received normal clinical evaluations in all areas and that he was given a
111111 Physical Profile and a Physical Category of A.  The summary of
defects and diagnosis portion of the SF 88 contains the entry “None”.  The
examining physician determined the applicant was qualified for
retention/separation and medically cleared the applicant for
retention/separation.

10.  On 7 October 1976, the unit commander notified the applicant of his
intention to initiate elimination action on the applicant under the
provisions of paragraph 13-12, Army Regulation 635-200, by reason of
unsuitability.  The applicant acknowledged receipt of this notification.

11.  On 8 October 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation, its effects, and of
the rights available to him.  Subsequent to this counseling, the applicant
waved his right to consideration by and personal appearance before a board
of officers.  He submitted no statement in his own behalf.

12.  On 10 November 1976, the separation authority approved the applicant’s
separation for unsuitability and directed he receive an honorable
discharge.  On 17 November 1976, the applicant was discharged accordingly.


13.  The separation document (DD Form 214) issued to the applicant upon his
separation confirms he completed a total of 3 years, 9 months and 24 days
of active military service, and earned the NDSM, AOM-Berlin, AGCM and
Sharpshooter Qualification Badge with Rifle Bar during his active duty
tenure.

14.  The applicant provides a letter from a psychiatrist from the VA
Medical Center, Bronx, New York.  The physician states that the applicant
is under his care through the VA outpatient psychiatric clinic for
schizoaffective disorder.  He further confirms the applicant’s condition
interferes with his ability to be gainfully employed.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided the authority for the separation of enlisted personnel for
unsuitability based on inaptitude, personality disorder, apathy, or
homosexual tendencies.  Members separated under these provisions could
receive either an HD or GD.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) then in effect, established the Army Physical Disability
Evaluation System (PDES) and set forth policies, responsibilities, and
procedures
that applied 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.

17.  The physical disability regulation stipulates that separation by
reason of disability requires processing through the PDES.  Chapter 4
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).


18.  The physical disability regulation further indicates that 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.

19.  Title 38, United States Code, sections 1110 and 1131, permit the VA to
award compensation for disabilities which were incurred in or aggravated by
active military service.  However, an award of a higher VA rating does not
establish error or injustice in the Army rating.  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.
20.  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.  Accordingly, it is not unusual for the two agencies of the
Government, operating under different policies, to arrive at a different
disability rating based on the same impairment.  Furthermore, unlike the
Army, the VA can evaluate a veteran throughout his or her lifetime,
adjusting the percentage of disability based upon that agency’s
examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he is due monetary compensation for
illnesses and injuries he received on active duty, and because he
experienced racism due to his ability to out-perform his contemporaries
were carefully considered.  However, while the Board would never let stand
an action that resulted from bias, there is insufficient evidence to show
racial prejudice played any part in the applicant’s separation.

2.  Further, the SF 88 on file in the applicant’s record confirms he
suffered from no medically or mentally disqualifying condition that would
have supported his processing through the Army PDES, and he was medically
cleared for separation by competent medical authority.  Therefore, given
the applicant suffered from no physically disqualifying condition at the
time of his discharge, there is an insufficient evidentiary basis to
support monetary compensation at this late date, almost 30 years after the
fact.

3.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation in effect a
the time.  All requirements of law and regulation were met, and the rights
of the applicant were fully protected throughout the separation process.

4.  The supporting letter from the VA psychiatrist provided by the
applicant was also carefully considered.  However, the VA awards ratings
because a medical condition is related to service, i.e., service-connected
and not based on unfitness for further service, as the Army does.  Further,
the VA can evaluate a veteran throughout his/her lifetime, adjusting the
percentage of disability based upon that agency's examinations and
findings.  In this case, the applicant is properly being evaluated, treated
and compensated for his condition by the VA in accordance with the
applicable laws and regulations.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 November 1976.  Therefore, the time

for him to file a request for correction of any error or injustice expired
on
16 November 1979.  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

___LDS _  ___PHM_  ___LGH _  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.




            ____Linda D. Simmons __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009195                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1976/11/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsuitabilty                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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