RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20040010212


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard 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 discharge be upgraded to fully
honorable by reason of physical disability.

2.  The applicant states that he believed he was receiving a medical
discharge for an injury he incurred during basic training.  He was pulled
from a bleacher by a lieutenant and fell on his right hip/back area.  He
wanted to get out so he signed his discharge papers as he was advised, but
did not agree with the basis for the discharge.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 July 1962.  The application submitted in this case is dated
27 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 enlisted in the Regular Army on 28 September 1961, for a
period of 3 years.

4.  On 28 May 1962, a neuropsychiatric evaluation stated that the applicant
knew right from wrong and could adhere to the right, and that he had no
mental disease or derangement which would qualify him for consideration for
separation through medical channels.  He was passive aggressive, marked by
immaturity and dependency features, poor motivation for service,
manipulation, somatic complaints referable to the back for which no organic
basis could be found.  It had become increasingly evident that he was
unable to adjust to the military setting.  A review of his health record
indicated frequent sick call visits for lower back pain since his entry
into the service.  Information in the health record indicates he had been
thoroughly evaluated on several occasions and there was no organic basis
for the complaints, yet he persisted in frequent sick call in an attempt to
manipulate his environment.  Prior to his entry into the service “back
trouble” prevented him from engaging in many pursuits and his Army
experience was but another in a line of failures.  He had demonstrated no
interest in treatment and was uncooperative in rehabilitative efforts.  The
evaluation recommended that he be separated from the service under the
provisions of Army Regulation 635-209, for unsuitability.

5. On 5 June 1962, a medical examination found the applicant medically
qualified for separation.

6.  On 19 June 1962, the applicant’s unit commander recommended his
separation under the provisions of Army Regulation 635-209.  The reason for
his commander’s actions was the applicant’s neuropsychiatric evaluation and
his personal observance of him in the unit.  During this time he had been
in his commander’s office for his attitude and poor performance in school.
He failed to put forth any effort that would indicate that he was trying to
succeed and adjust to military life.  He believed that he could not accept
responsibility or adjust to military life and should be discharged.

7.  The applicant acknowledged that he had been counseled and advised of
the basis for his commander’s actions, had been afforded and waived his
right to legal counsel, waived consideration of his case by a board of
officers, and elected not to submit a statement in his own behalf.

8.  On 11 July 1962, the appropriate separation authority approved the
discharge request under the provisions of Army Regulation 635-209, for
unsuitability.

9.  On 13 July 1962, the applicant was separated under the provisions of
Army Regulation 635-209.  His service was characterized as under honorable
conditions.  His DD Form 214 indicates he had 9 months and 16 days of
creditable service.

10.  Army Regulation 635-40, then in effect, stated that disability
compensation was not an entitlement acquired by reason of service-incurred
illness or injury; rather, it was provided to soldiers whose service was
interrupted and they could no longer continue to reasonably perform because
of a physical disability incurred or aggravated in service.  When a solider
was being processed for separation or retirement for reasons other than
physical disability, continued performance of assigned duty commensurate
with his or her rank or grade until the soldier was scheduled for
separation or retirement, created a presumption that the soldier was fit.
The presumption of fitness could have been overcome if the evidence
established that the soldier was, in fact, physically unable to perform
adequately the duties of his or her office, grade, rank or rating for a
period of time because of disability.  There must have been a causative
relationship between the less than adequate duty performance and the
unfitting medical condition or conditions.  The presumption of fitness
could have also been overcome by an acute, grave illness or injury or other
significant deterioration if the soldier’s physical condition occurred
immediately prior to, or coincident with processing for separation or
retirement for reasons other than physical disability and which rendered
the soldier unfit for further duty.

11.  Army Regulation 40-501 states that personality disorders may render an
individual administratively unfit rather than unfit because of physical
disability.  Interference with performance of effective duty in association
with these conditions will be dealt with through appropriate administrative
channels.  It also states that transient, situational maladjustment due to
acute or special stress do not render an individual unfit because of
physical disability, but rather may be the basis for administrative
separation if recurrent and causing interference with military duty.

12.  Army Regulation 635-209, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for
unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that: the individual was unlikely to develop sufficiently to participate in
further military training and/or become a satisfactory soldier or the
individual's psychiatric or physical condition was such as to not warrant
discharge for disability.  Unsuitability included inaptitude, character and
behavior disorders, disorders of intelligence and transient personality
disorders due to acute or special stress, apathy, defective attitude, and
an inability to expend effort constructively.  Evaluation by a medical
officer was required and, when psychiatric indications are involved, the
medical officer must be a psychiatrist, if one was available.  A general or
honorable discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he had a back problem
sufficient to warrant disposition through medical channels, or that is
somehow excused the behavior which in part led to his discharge.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 July 1962; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
12 July 1965.  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

___PS __  ___YM __  ___LH_____  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 Smith_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010212                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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