RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 May 2004
      DOCKET NUMBER:   AR2004099943


      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. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 under other than honorable
conditions be changed to a medical discharge.  He also requests that his
Social Security Number (SSN) be corrected.

2.  The applicant states that he should have been given a medical discharge
and the narrative reason for discharge (frequent involvement in incidents
of a discreditable nature with civil or military authorities) is incorrect.
 He contends that he did not know the characterization of his discharge
would have an affect on his employment.  He also contends that his SSN is
incorrect.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a Social Security card.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error and an
injustice which occurred on 8 July 1981.  The application submitted in this
case is dated
20 October 2003.

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.  The applicant enlisted in the U.S. Army Reserve on 13 November 1978 for
a period of 6 years under the delayed entry program.  He enlisted in the
Regular Army on 16 November 1978 for a period of 3 years.  He successfully
completed basic training and One Station Unit Training in military
occupational specialty
13B (cannon crewman).

4.  On 10 January 1979, nonjudicial punishment was imposed against the
applicant for possession of marijuana.  His punishment consisted of a
forfeiture of pay.

5.  On 9 February 1979, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 1 February 1979 to
4 February 1979.  His punishment consisted of a forfeiture of pay and 7
days of correctional custody.

6.  On 27 August 1979, nonjudicial punishment was imposed against the
applicant for violating a lawful general regulation.  His punishment
consisted of a reduction to E-1 (suspended), a forfeiture of pay, extra
duty and restriction.

7.  On 28 December 1979, nonjudicial punishment was imposed against the
applicant for stealing a camera from another soldier.  His punishment
consisted of a reduction to E-2, a forfeiture of pay, extra duty and
restriction.  On
31 December 1979, a portion of the punishment of forfeiture of pay was set
aside.

8.  On 7 February 1980, nonjudicial punishment was imposed against the
applicant for being AWOL from 1 February 1980 to 5 February 1980.  His
punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty
and restriction.

9.  On 13 February 1980, nonjudicial punishment was imposed against the
applicant for failure to repair and disobeying a lawful order.  His
punishment consisted of a forfeiture of pay, extra duty and restriction.

10.  On 30 June 1980, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay and extra duty.

11.  On 22 July 1980, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-2 (suspended) and 7 days of correctional custody.

12.  The applicant's Personnel Qualification Record, prepared on 19
September 1980, shows his physical profile factors as 111111.

13.  On 21 October 1980, the applicant was convicted by a summary court-
martial of being disrespectful in language toward a staff sergeant,
disobeying a lawful order, failure to repair (two specifications), and
communicating a threat to injure a staff sergeant.  He was sentenced to
forfeit $334 pay per month for
1 month and to be confined at hard labor for 30 days.  On 21 October 1980,
the convening authority approved the sentence.

14.  On 27 March 1981, in accordance with his pleas, the applicant was
convicted by a summary court-martial of three specifications of being AWOL
(1 January 1981 to 20 January 1981; 3 March 1981 to 11 March 1981; and
12 March 1981 to 24 March 1981).  He was sentenced to forfeit $250 pay per
month for 1 month and to be confined at hard labor for 30 days.  On 30
March 1981, the convening authority approved the sentence.


15.  On 16 April 1981, the applicant underwent a mental status evaluation
and a separation medical examination and was found qualified for
separation.

16.  On 11 May 1981, the applicant's unit commander recommended that the
applicant be discharged under the provisions of Army Regulation 635-200,
paragraph 14-33 for misconduct due to frequent involvement in incidents of
a discreditable nature with military authorities.  He cited the applicant’s

8 nonjudicial punishments and 2 summary court-martial convictions.

17.  On 11 May 1981, the applicant signed a statement in which he indicated
that he had been counseled and advised of the basis for the recommended
separation action and that he had been advised by counsel with regard to
the rights available.  He requested consideration of his case by a board of
officers and elected not to submit a statement in his own behalf.

18.  On 1 June 1981, contrary to his plea, the applicant was convicted by a
summary court-martial of failure to repair.  His sentence consisted of a
forfeiture of pay.  On 3 June 1981, the convening authority approved the
sentence.

19.  On 23 June 1981, the applicant appeared before a board of officers.
In summary, the applicant testified that he joined the Army because he
needed money to help support his family, that after he was court-martialed
he was sent to the retraining brigade, and that his morale dropped and his
motivation ended when his request for leave was denied following his
graduation from the retraining brigade, so he went AWOL.  He stated that he
requested to appear before the board because he wanted to stay in the Army.
 The board found that the applicant had the ability to perform military
duty in a satisfactory manner and recommended that he be eliminated from
the service for misconduct with the issuance of a discharge under other
than honorable conditions.

20.  On 6 July 1981, the separation authority approved the recommendation
for discharge under the provisions of Army Regulation 635-200, paragraph
14-33b(1) for misconduct due to frequent incidents of a discreditable
nature with civil or military authorities.  He also directed that the
applicant be furnished a discharge under other than honorable conditions.

21.  Accordingly, on 8 July 1981, the applicant was discharged under other
than honorable conditions under the provisions of Army Regulation 635-200,
paragraph 14-33b(1) for misconduct due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 2
years, 4 months, and
19 days of creditable active service with 94 days of lost time due to AWOL
and confinement.

22.  The applicant’s DD Form 4/1 (Enlistment/Reenlistment Document - Armed
Forces of the United States), dated 13 November 1978, and his DD Form 214
display the same SSN.

23.  In support of his claim to correct his SSN, the applicant provided a
copy of his Social Security card which shows a SSN with the last 4 digits
different.

24.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

25.   Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  Chapter 14, paragraph 14-
33b(1), provided for discharge due to frequent incidents of a discreditable
nature with civil or military authorities.  A discharge under other than
honorable conditions was normally considered appropriate.

26.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.

27.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-3, states that an enlisted soldier may not be referred for, or
continue, disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions.

28.  Army Regulation 635-5 prescribes the separation documents prepared for
soldiers upon retirement, discharge, or release from active military
service or control of the Army.  It establishes standardized policy for the
preparation of the DD Form 214.  In pertinent part it states that the DD
Form 214 is a synopsis of



the soldier's most recent period of continuous active duty.  It provides a
brief, clear-cut record of active Army service at the time of release from
active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence of record shows that prior to the applicant's
separation competent medical authorities found him qualified for
separation.  Even if he had not been recommended for separation under the
provisions of Army Regulation 635-200, chapter 14, there appears to have
been no basis for a medical discharge.

2.  A discharge is not amended for the sole purpose of obtaining employment
opportunities.

3.  The applicant's record of service included 8 nonjudicial punishments,
including one for possession of marijuana and one for stealing, and
3 summary court-martial convictions.  His administrative separation was
accomplished in compliance with applicable regulations with no indication
of procedural errors which would tend to jeopardize his rights.

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

5.  Evidence of record shows the same SSN was used at the time of the
applicant's enlistment and his discharge from the Army.

6.  For historical purposes, the Army has an interest in maintaining the
accuracy of its records.  The data and information contained in those
records should actually reflect the conditions and circumstances that
existed at the time the records were created.  In the absence of a showing
of material error or injustice, this Board is reluctant to recommend that
those records be changed.

7.  While the Board understands the applicant's desire to have the records
changed, it finds no basis for compromising the integrity of the Army's
records.  This Board action will be filed in his military records so a
record of his SSN as currently used will be on hand.

8.  Records show the applicant should have discovered the alleged error and
 injustice now under consideration on 8 July 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 July 1984.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

FE_____  RD______  YM______  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.




            _Fred Eichorn_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099943                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040511                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810708                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct due to frequent incidents of |
|                        |a discreditable nature with civil or    |
|                        |military authorities                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |100.0900                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |