RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          28 September 2004
      DOCKET NUMBER:  AR2004101856


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Ronald E. Blakely             |     |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, that his general discharge (GD) be
upgraded to a medical discharge.

2.  The applicant states, in effect, that he believes his discharge should
be upgraded to a medical discharge based on the injury that he received to
his right eye in August 1956.

3.  The applicant provides in support of his request a:

      a.  Copy of his Certification of Military Service, dated 1 November
1994, that shows he was separated with a GD.


      b.  Record of Courts-Martial Convictions.


      c.  Out Patient Index Cards that he obtained from the Veterans
Administration (VA).


      d.  Statement that he provided the VA in support of his VA claim.  In
this statement, the applicant contends he had a profile that stated he was
not to perform any duties that required the use of a firearm, or objects
with moving parts, or anything that could endanger the safety of his good
eye.  At the time he filed the VA claim, he stated he was blind in both
eyes and he also had bilateral hearing loss.  He believes the discharge is
unjust because he had only 1 month and 28 days remaining in the military
when he was separated.  His discharge also keeps him from obtaining VA
benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 April 1980.  The application submitted in this case is dated

10 December 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 available evidence shows that on 25 February 1955, at Fort Jackson,
South Carolina, the applicant was inducted into the Army of the United
States.  He served in Korea from some unknown date until he returned to the
United States for separation processing.

4.  The Out Patient Index Cards that the applicant provided show that on
16 May 1956, he complained of headaches and new blindness in his right eye
that was due to an injury that he received at age 16.  On 1 August 1956, he
complained that he experienced pain in his eyes and passed out, but his
vision was "OK" at that time.

5.  The evidence available shows that, while assigned to Korea between
November 1955 and November 1956, the applicant was convicted by summary
courts-martial on four separate occasions:

      a.  On 9 November 1955, the applicant was convicted for being absent
without leave (AWOL) from 6-7 November 1955.  He was sentenced to serve
1 month in confinement at hard labor and to forfeit $50.00 pay for 1 month.


      b.  On 31 July 1956, the applicant was convicted for failure to obey a
lawful general regulation by being in an off limits area on 21 July 1956.
He was sentenced to forfeit $40.00 pay for 1 month.

      c.  On 12 September 1956, the applicant was convicted for being AWOL
from 1-2 September 1956.  He was sentenced to serve 30 days in confinement
at hard labor and to forfeit $60.00 pay for 1 month.


      d.  On 16 October 1956, the applicant was convicted for violating a
general regulation by being in an off limits area (a Korean home), and for
being off of his compound without a valid pass on 8 October 1956.

6.  The applicant's separation proceedings show the applicant had a
physical profile at time of separation.  The profile is not contained in
the available record.  On 9 October 1956, the applicant was evaluated by a
medical doctor at the Dispensary, 57th Field Artillery Battalion, 7th
Infantry Division Artillery.  The applicant was determined to have no
disqualifying mental or physical defects that were sufficient to warrant
discharge through medical channels.

7.  On an unknown date, the applicant's unit commander officially notified
him that he was being recommended for discharge under the provisions of
chapter 13, Army Regulation 635-208 for unfitness.  He was informed of the
basis for the contemplated separation action and advised of the rights
available to him.  On an unknown date, he consulted with legal counsel and
requested a personal appearance before an administrative separation board.


8.  On 12 December 1956, the applicant was notified that a board of
officers would convene on 15 December 1956 to determine whether he should
be discharged from the service for unfitness before the expiration of his
term of service.  On 13 December 1956, the applicant was notified that the
board of officers had been postponed and would convene on 17 December 1956.

9.  On 17 December 1956, the applicant appeared with counsel before the
board of officers.  Verbal testimony and numerous counseling statements
were submitted to the board.  During the board proceedings, the evidence
presented indicates in addition to the above misconduct, the applicant
showed little initiative and ambition to do his job.  He required constant
supervision and he was not dependable.  He exhibited unclean moral and
hygiene habits and he was removed from his job in the battery dinning
facility.  He also became involved with a Korean woman and experienced some
personal problems.  Both the applicant's conduct and performance ratings
were unsatisfactory and he was given several transfers so that he could
have a fresh start.  The transfers were not productive.

10.  On the same date, the board concluded that the applicant was
unsuitable for further retention in the military because of undesirable
habits and traits of character manifested by misconduct.  The board
recommended that the applicant be separated due to unfitness with a UD.

11.  On 26 December 1956, the appropriate authority approved the separation
recommendation and directed the issuance of a UD.

12.  The applicant's DD Form 214 for this period of service is not
available.  However, the evidence that is available shows that on 4
February 1957, he was separated under the provisions of Army Regulation 635-
208, for unfitness with a UD.  He had completed approximately 1 year, 10
months and 9 days of active military service.  This service included 30
days of lost time due to being AWOL and in military confinement.

13.  On 17 April 1980, the Army Discharge Review Board granted the
applicant's request for an upgrade of his discharge.  The reason cited for
the upgraded was "uniform standards."  The ADRB determined that even though
the discharge was proper, it was not equitable.  The applicant's misconduct
was considered to have been minor in nature and he served almost to his
expiration of term of service date.  The majority of the ADRB believed the
characterization of service was too harsh and voted to grant partial relief
in the form of a GD.  The reason for discharge was not changed.

14.  Army Regulation 635-208, in effect at the time set forth the basic
authority for administrative separation for unfitness (misconduct).  Action
to separate an individual was to be taken when, in the judgment of the
commander, it was clearly established that rehabilitation was impractical
or was unlikely to produce a satisfactory soldier.  A UD or a GD was
considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  Both the characterization of
service and the narrative reason for separation were in accordance with
regulations then in effect.  On 17 April 1980, the ADRB found the
characterization of service inequitable and upgraded it to a GD.

2.  The evidence that is available supports that the applicant's right eye
injury occurred prior to enlistment.  The applicant had no medical
condition or injury at the time that he served that rendered him medically
unfit and justified physical disability processing.  Therefore, no basis
has been established for correcting his record to show he was separated for
medical reasons.

3.  Eligibility for veteran's benefits (to include VA medical benefits)
does not fall within the purview of this Board.  Furthermore, the Board
does not grant relief solely for the purpose of granting VA benefits.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 April 1980; after the ADRB review.
Therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 16 April 1983.  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

__fe____  __kyf___  __reb___  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                 |AR2004101856                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040928                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19570204                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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