RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 OCTOBER 2005
      DOCKET NUMBER:  AR20040010921


      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. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Carol Kornhoff                |     |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, disability separation.

2.  The applicant states that he should have received a medical discharge.
He accepted a discharge under Army Regulation 635-212, with a general
discharge because he wanted to avoid going back to Fort Dix, New Jersey.
Now because of how much he has lost, he wishes he had gone back to Fort Dix
and suffered it out.

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 12 February 1971.  The application submitted in this case is
dated 30 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 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.  There are no medical files in the applicant’s available records.

4.  Records available to the Board indicate the applicant entered active
duty on
4 June 1970.  He successfully completed basic combat training at Fort Dix,
New Jersey and advanced individual training at Fort Belvoir, Virginia.

5.  On 14 December 1970, the applicant was punished under the Uniform Code
of Military Justice for being absent without leave (AWOL) from 14 October
1970 to 23 November 1970.

6.  On 4 February 1971, the applicant was advised by his unit commander
that he was initiating action to separate him under the provisions of Army
Regulation
635-212, and advised him of his rights.


7.  On 4 February 1971, the applicant’s unit commander recommended that he
be discharged from the service under the provisions of Army Regulation 635-
212 for unsuitability, and further recommended that he be given a general
discharge. This discharge action was recommended because of the applicant’s
demonstrated lack of self control and extreme personality conflicts
evidenced in violent outbursts.  He admitted taking out his frustrations on
his baby, son and wife.  He had no ability to manage his personal affairs
and was constantly in debt for one reason or another, all of which occurred
as a result of his poor judgment and erratic actions.  His commander noted
that a report of psychiatric evaluation and a medical examination cleared
the applicant for separation.

8.  On 5 February 1971, after consulting with legal counsel, the applicant
waived consideration of his case by a board of officers, waived legal
representation, and elected not to submit a statement in his own behalf.

9.  On 9 February 1971, the appropriate separation authority approved the
applicant’s discharge under the provisions of Army Regulation 635-212, for
unsuitability, and directed the issuance of a general discharge.

10.  On 12 February 1971, the applicant was discharged under the provisions
of Army Regulation 635-212.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he had 6 months and 27
days of creditable service, and 42 days of lost time.

11.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for administrative separation of enlisted personnel for
unfitness and unsuitability. It provided, in pertinent part, for discharge
due to unsuitability because of apathy by a displayed lack of appropriate
interest and/or an inability to expend effort constructively.  When
separation for unsuitability was warranted an honorable or general
discharge was issued as determined by the separation authority based upon
the

12.  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.

13.  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.



DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The applicant’s contention that he should have received a medical
discharge is not supported by any evidence submitted by him, or contained
in records available to the Board.  The evidence available indicates a
psychiatric evaluation and a medical examination cleared him for
separation.

3.  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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 February 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 February 1974.  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

___TK  __  __PM___  ___CK___  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.




                                  _____ Ted Kanamine______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010921                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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