RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 January 2005
      DOCKET NUMBER:  AR2004106247


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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.

2.  The applicant states, in effect, that at the time of his discharge he
was medically unfit.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 December 1973.  The application submitted in this case is
dated 18 March 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.  A Standard Form 513 (Consultation Sheet), dated 15 September 1972,
shows during the applicant's enlistment physical examination old vein
punctures were found on both his arms, his left arm showed marks as old as
three months.  He denied any recent use of drugs.

4.  The applicant enlisted in the Regular Army on 30 October 1972 and did
not successfully complete advanced individual training (AIT).

5.  A DA Form 3349 (Physical Profile), dated 8 November 1972, shows the
applicant was issued a temporary profile for "emotional and attitudinal
problems." The assignment limitations imposed by the physical profile
precluded overseas movement.

6.  A Standard Form 513, dated 4 December 1972, shows that the applicant
had Sickle Cell Disease traits.

7.  On 14 February 1973, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being
absent without leave (AWOL) for the period from 7 February 1973 through 13
February 1973.
8.  Records show that the applicant was AWOL for the period 22 March 1973
through 4 April 1973.

9.  On 1 May 1973, the applicant accepted NJP under Article 15, UCMJ for
failure to be at his prescribed place of duty on 24 April 1973 and
disobeying a lawful order on 26 April 1973.

10.  A DA Form 3349, dated 9 May 1973, shows the applicant was issued a
temporary profile for "lumbar muscle strain."  The assignment limitations
imposed by the physical profile precluded participation in running and
standing over 30 minutes.

11.  A Standard Form 93 (Report of Medical History), dated 29 October 1973,
shows that a medical doctor noted that the applicant had no acute medical
problems and the applicant stated that his present health was "in fair
health."

12.  A Standard Form 89 (Report of Medical Examination), dated 29 October
1973, showed that the applicant was qualified for separation.

13.  A DD Form 458 (Charge Sheet), dated 31 October 1973, shows charges
were preferred against the applicant for being AWOL 7 May 1973 and 1 June
1973 through 16 October 1973.

14.  On 6 November 1973, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions; that he may be
deprived of many or all Army benefits; that he may be ineligible for many
or all benefits administered by the Department of Veterans Affairs; and
that he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Conditions Discharge.

15.  The applicant submitted a statement on his own behalf that stated, in
effect, that the reason he had gone AWOL was because he had used heroin for
the past year and a half which had caused him to have liver damage.  He
further stated that he had traits of sickle cell disease and while AWOL he
was in a car wreck and did damage to his back.

16.  The applicant continued that unit Non-commissioned Officers (NCOs)
were giving him a hard time about his medical treatment so he decided to
get treatment from doctors at home.  He concluded that staying in the Army
would only depress him and lead him back to a life of drugs and crime.  He
stated that he would accept an undesirable discharge.

17.  On 15 March 1978, the appropriate authority approved the applicant's
request for discharge for the good of the service.  He directed that the
applicant be issued an Under Other Than Honorable Conditions Discharge and
be reduced to the lowest enlisted grade.  The applicant completed 8 months
and 13 days of creditable active service of a 3-year enlistment with
153 days of lost time due to AWOL and confinement.

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

19.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

20.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

21.  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, physical disability processing when action has been started under
any regulatory provision which authorizes a characterization of service of
under other than honorable conditions. An exception may be made by the
general court-martial convening authority if the disability is the cause,
or a substantial contributing cause, of the misconduct that might result in
a discharge under other than honorable conditions or other circumstances
warrant disability processing instead of alternate administrative
separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because at
the time of his discharge he was medically unfit for duty.  However, his
Report of Medical History and Report of Medical Examination completed at
the time of his separation show that his health was fair and that he was
qualified for separation prior to his discharge.

2.  The applicant's medical records show that he was treated for emotional
and attitudinal problems, a lumbar muscle strain, and was diagnosed with
sickle cell disease traits; however, there is no evidence in the available
records which show that the applicant's medical conditions resulted in his
acts of indiscipline.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

4.  The applicant's records show that he received two Article 15s and had
four instances of AWOL.  The applicant had completed only 8 months and 13
days of his 3-year enlistment with a total of 153 lost days due to AWOL and
confinement. Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of an honorable or general
discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 December 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 December 1976.  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 file in this case.










BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW  _  __ECP __  __BKK __  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.




                                  __ Mr. Raymond J. Wagner_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106247                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |27 January 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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