RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 November  2004
      DOCKET NUMBER:  AR2004104143


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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, a change of his undesirable
discharge (UD) to an under honorable conditions medical discharge.

2.  The applicant states, in effect, that he was seriously injured while
performing his duties and was promised a medical board he never received.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 January 1965.  The application submitted in this case
is dated
9 February 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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 24 September 1962.  He was trained in, awarded and
served in military occupational specialty (MOS) 910.07 (Medical Corpsman)
and the highest rank he attained while serving on active duty was private
first class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on the following five separate occasions for the
offense(s) indicated:  9 January 1964, for failing to go to his appointed
place of duty; 30 March 1964, for failing to go to his appointed place of
duty; 17 May 1964, for disorderly conduct; 4 June 1964, for being absent
from his unit and missing bed check; and 31 July 1964, for failing to go to
his appointed place of duty.
5.  The record also shows that on 1 August 1963, a summary court-martial
convicted the applicant of failing to obey a lawful general order by firing
a weapon while posted as a sentinel.  The resultant sentence included 30
days
of hard labor without confinement, forfeiture of $50.00 and reduction to
private/E-1 (PV1).

6.  On 31 October 1964, a special court-martial convicted the applicant of
being absent without leave (AWOL), from on or about 1 through on or about
29 September 1964.  The resultant sentence included confinement at hard
labor for six months (unexecuted portion suspended) and a forfeiture of
$55.00 per month for six months.

7.  On 1 December 1964, a physician completed an endorsement confirming the
applicant underwent a separation physical and mental examination.  This
document contains medical authority confirmation that the applicant
suffered from no disqualifying physical or mental defects sufficient to
warrant his separation processing through medical channels.

8.  On 3 December 1964, the unit commander notified the applicant that his
separation was being recommended under the provisions of Army Regulation
635-208, based on his repeated failure to respond to counseling, his
continuous violations of regulations, and his being a constant source of
trouble within the unit.  The unit commander further informed the applicant
that he was recommending he receive an UD.

9.  On 17 December 1964, the applicant completed his election of rights by
declining counsel, waiving his right to have his case considered by a board
of officers and electing not to submit statements in his own behalf.

10.  On 30 December 1964, the separation authority approved the applicant’s
separation and directed that he receive an UD.  On 26 January 1965, the
applicant was discharged accordingly.  The separation document (DD Form
214) issued to the applicant confirms he was separated under the provisions
of Army Regulation 635-208, by reason of unfitness (frequent involvement in
incidents of a discreditable nature with civil or military authorities).
This document further confirms he completed a total of 2 years and 21 days
of creditable active military service and accrued 102 days of time lost due
to AWOL and confinement.
11.  On 4 October 1966, the Army Discharge Review Board (ADRB) determined
that the applicant was properly and equitably discharged and it denied his
request for an upgrade of his UD.

12.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided for the
separation of members for unfitness, for frequent involvement in incidents
of a discreditable nature with civil or military authorities.  An UD was
normally considered appropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 Chapter 3 provides guidance on presumptions of fitness.  It states that
the mere presences of an impairment does not, of itself, justify a finding
of unfitness because of physical disability.  In each case, it is necessary
to compare the nature and degree of physical disability present with the
requirements of the duties the soldier reasonably may be expected to
perform because of his or her office, grade, rank, or rating.  Separation
by reason of disability requires processing through the PDES.

14.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the soldier against the physical
requirements of the soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a soldier to be separated or retired because of physical
disability.
15.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was severely injured in the
performance of his duty while serving on active duty and should have
received a medical discharge was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant underwent a final
separation physical and mental examination that found no physical or mental
defects that warranted his processing for separation through medical
channels.

3.  The record further confirms the applicant’s separation was accomplished
in accordance with the applicable regulation.  All requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  Finally, his UD accurately reflects his
overall record of service.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 4 October 1966.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 3 October 1969.  However, he 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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JNS_ _  __SLP___  ___PHM_  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.




            ____John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104143                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/30                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1965/01/26                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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