RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 August 2005
      DOCKET NUMBER:  AR20040009825


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |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 that his under other than honorable conditions
(UOTHC) discharge be upgraded to a general discharge under honorable
conditions.

2.  The applicant states, in effect, that:

      a.  He felt he was different from other Soldiers in his unit because
he lacked both the skills he needed to interact with them and the skills
required to properly perform his duties.

      b.  A mental hygiene evaluation, dated 5 February 1981, shows he had
a speech impediment that involved stuttering, mumbling and diminished
vocabulary which affected his ability to serve in the Army.  The evaluating
official recommended that he be separated under the provisions of chapter
5, Army Regulation 635-200, because he displayed the characteristics of a
schizoid personality and he could not conform to military standards.

      c.  Medical records show that he experienced effusion and deformity
of the left scapular region on 11 August 1981 after getting into a fight.
He also had a "cardiac incident" and edema after being hit by the trim vane
of an M113 Armored Personnel Carrier (APC) on 29 October 1981.  Finally, he
had swelling in his feet due to frostbite on 8 December 1981.

      d.  Medical personnel did not believe he was "able to comprehend or
that he had the verbal capacity to participate in motions for self defense
under the U.S.M.J. [sic] statutes, Uniform Code of Military Justice.”

3.  The applicant provides in support of his request:

      a.  A DD Form 214 (Certificate of Release or Discharge from Active
Duty).

      b.  Medical documents dated between August 1980 and May 1982.  His
separation physical examination was not provided.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel made no additional requests.

2.  Counsel states no additional contentions.

3.  Counsel provides no additional evidence.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 February 1984.  The application submitted in this case is
dated 4 November 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 limitation 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.  On 24 July 1980, the applicant enlisted in the Regular Army for a
period of 3 years and training in military occupational specialty (MOS) 11B
(Infantryman).  He completed the training requirements and was awarded MOS
11B.  On 14 November 1980, he was assigned to Germany with duties in his
MOS.

4.  On 5 February 1981, the applicant was referred to mental hygiene for
evaluation due to anxiety and depression.  The applicant told the examining
official that, "his sergeant referred him because he was different and
others in his unit goofed off on him."  The applicant also stated that, "he
had some mechanical and tinker aptitude, but none for dealing with people."
 The examining official noted the applicant appeared to be "tense,
maladroit (awkward), and shy."  He "mumbled, stuttered and stated that his
vocabulary had always been like this."  The examining official noted:
"dRad vs sch Personality."  The examining official supported separation
under the provisions of chapter 5, Army Regulation 635-200.

5.  On 11 August 1981, the applicant reported to the Battalion Aid Station,
2nd Battalion, 15th Infantry that he had been involved in an altercation
approximately 5 to 10 days earlier and that he had been experiencing
tenderness in his left shoulder.  The examining official noted a slight
amount of effusion to the scapula (shoulder blade) region, a slight amount
of discoloration, and deformity.  He was referred for x-rays.  He was
treated with heat and a sling.  He was also advised not to do pushups, pull-
ups, or any running for 30 days.  An undated medical record shows he
experienced pain in the left shoulder on one other occasion.
6.  On 29 October 1981, the applicant reported to the Battalion Aid Station
complaining of pain in the center of his chest.  He indicated that he had
been hit in the chest 1 week earlier with the trim vane of an M113 APC and
that he had experienced pain since that time.  The examining official
observed no deformity, or swelling.  It was determined that the applicant
was experiencing some muscle spasm to the left side of the chest and
tenderness over the sternum.  His chest was clear.  The applicant was also
determined to have a contusion to the intercostal muscle (muscle tissue
between two ribs also known as the skeletal muscle) of the rib on the left
side of the chest.  Zactrin was prescribed for the applicant's use; he was
also advised not to do any physical training or heavy lifting for 5 days.

7.  On 8 December 1981, the applicant reported to the Battalion Aid Station
complaining of swelling in the lateral aspect of his feet for the past 2
days.  He denied having experienced any trauma to the feet and indicated
that he experienced frostbite in his feet when he was a civilian.  The
examining official observed that there was some swelling in the left foot.
The capillary refill was good, there was good sensation, full range of
motion, the feet were warm to touch, "R/O exposure."  The applicant was
prescribed indoor duty for the rest of the day and counseled on the
procedures of good foot care.  On more than one occasion, the applicant was
treated for foot problems: numbness in the right toe due to frostbite, a
callus on the left foot, and a blister on the left heel.

8.  On 9 May 1982, the applicant departed Germany on a permanent change of
station move en route to the 21st Replacement Detachment, Fort Hood, Texas.
 He failed to report and was listed as absent without leave (AWOL) status
on 2 June 1982.  He remained AWOL until he returned to military control at
Fort Dix, New Jersey on 11 January 1984.

9.  On an unknown date, court-martial charges were preferred against the
applicant.  On 19 January 1984, he consulted with legal counsel and
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.  He
was advised that he could receive a UOTHC discharge.  He acknowledged he
understood the ramifications of receiving a UOTHC discharge and he declined
to submit a statement in his own behalf.

10.  On 19 January 1984, both the applicant's unit commander and the
intermediate commanders recommended approval of his request with a UOTHC
discharge.
11.  On 25 January 1984, the approval authority approved the applicant's
request for discharge under the provisions of chapter 10 and directed that
he be reduced to the lowest enlisted grade and separated with a UOTHC
discharge.  Pay grade E-3 was the highest grade that he achieved.

12.  The applicant's DD Form 214 shows he was separated on 10 February 1984
under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC
discharge for the good of the service-in lieu of court-martial.  He had
completed
1 year, 11 months and 7 days of active military service and he had
approximately 588 days of lost time, due to being AWOL and in military
confinement.

13.  The applicant's separation physical examination is not available.

14.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitation.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may
submit a request for discharge for the good of the service in lieu of
trial by court-martial.  The request may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Although an honorable or general discharge was authorized, a UOTHC
discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.  The type of discharge directed
and the reasons for discharge were appropriate considering the facts of the
case.

2.  During the separation process, the applicant consulted with defense
counsel and acknowledged that he understood the ramifications of receiving
a UOTHC discharge.  There is no evidence available to indicate that he
lacked the verbal capacity or comprehension ability to participate in his
own defense.
3.  In February 1981, mental hygiene evaluated the applicant and determined
he may have suffered from a personality disorder other than schizophrenia
and recommended that he be separated under the provisions of chapter 5,
Army Regulation 635-200.  The decision of whether or not to separate him
was at the discretion of the commander.

4.  The available evidence does not support that the applicant's abilities
and skills were so limited or severe that they affected his ability to
serve.  In fact, he completed 18 months of service in Germany without any
recorded indiscipline or incidents; he returned to the United States and
went AWOL.  There is no evidence that his performance or military service
was substandard prior to this incident.

5.  The applicant's medical records show that:

      a.  On one occasion he received a blow to the chest and experienced
muscle spasms and tenderness over the sternum.  The condition was temporary
and there is no evidence that he ever experienced a cardiac problem.

      b.  He experienced tenderness in his shoulder on two separate
occasions, he was treated and there is no evidence of a lingering injury.


      c.  He also experienced foot problems to include swelling in his feet
that may have been related to frostbite to the feet when he was a civilian.
 He received treatment, temporary indoor duty, and training on the
appropriate measures for caring for his feet.  There is no evidence that
either of the above conditions hampered his ability for continued service.

6.  The applicant's separation physical examination is not available.
However, the available evidence indicates that he was medically qualified
for continued service at the time of separation.  The applicant has
provided no evidence to the contrary.

7  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 February 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 February 1987.  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

__pms___  __ym____  __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.



                                  Paul M. Smith
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20030009825                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19840210                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |








































Intercostal muscle: Muscle tissue between two ribs. This muscle is a type
called skeletal muscle.
|.|Calcaneus     |
|2|Talus         |
|.|              |
|3|Navicular     |
|.|              |
|4|Cuboid        |
|.|              |
|5|Cuneiform,    |
|.|First         |
|6|Cuneiform,    |
|.|Second        |
|7|Cuneiform,    |
|.|Third         |
|8|Metatarsal    |
|.|              |

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