RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 JANUARY 2005
      DOCKET NUMBER:  AR2004106750


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Ms. Jeanette McCants              |     |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 physical disability retirement or separation.

2.  The applicant states that a cyst was discovered on his bladder.  He has
a     50 percent service connected disability rating from the Department of
Veterans Affair (VA).

3.  The applicant provides a copy of a VA letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 December 1999.  The application submitted in this case
is dated 1 April 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 enlisted in the Army for 4 years on 27 April 1999.  Prior
to his enlistment he completed an "Enlistment Eligibility Questionnaire"
and a "Questionnaire for National Security Purposes," indicating on those
documents that he had never been arrested, charged, cited, held, or
detained by any law enforcement agency.  He indicated that he did not have
a police record.

4.  The applicant completed basic combat training at Fort Benning, Georgia,
and in July 1999 was assigned to Redstone Arsenal, Alabama for training as
an electronic missile system repairer.

5.  In a 15 July 1999 security clearance application, completed by the
applicant, he again stated that he did not have a police record.

6.  A 24 September 1999 report of mental status examination shows that the
applicant had been in treatment since 16 September 1999 and had been
diagnosed with major depressive disorder and prescribed anti-depressants.
The report stated that he did not appear to be motivated to complete his
military training.  The examining psychologists recommended that he be
discharged due to his inability to adapt to the military.

7.  In a 5 November 1999 memorandum a security specialist indicates that a
CID (Criminal Investigation Department) special agency stated that he had
done a National Crime Information Center (NCIC) check on the applicant and
found that the applicant has been arrested for unauthorized use of a motor
vehicle, failure to maintain proof of financial responsibility, and driving
with a suspended license.

8.  On 8 November 1999 a noncommissioned officer counseled the applicant
regarding his pending separation based on his inability to adapt to
military service.

9.  In a 14 November 1999 report of mental status evaluation the examining
psychologists indicated that the applicant's behavior was hostile, that he
was unable and unwilling to cooperate and adapt to the military life style,
frequently acted out in anger, and was a positive risk to the command.
They stated that the applicant was not fit for military duty and
recommended that he be discharged as expeditiously as possible.  They
indicated that he was mentally responsible, had the mental capacity to
understand and participate in proceedings, and met the medical standards
for retention in the Army.

10.  On 3 December 1999 the applicant was again counseled regarding his
pending separation because of concealment of his arrest record.

11.  In an undated statement, a fellow Soldier stated that on 3 November
1999 the applicant stated to him that the drill sergeants and instructors
had upset him, but they did not know what he was capable of, and that he
had read the anarchist cook book and knew how to make bombs, so they had
better get him out of the Army soon.

12.  On 3 December 1999 the applicant's commanding officer informed the
applicant that he was initiating action to separate him under the
provisions of Army Regulation 635-200, paragraph 5-14, for concealment of
his arrest record. He stated that he was recommending that he receive a
general discharge.

13.  The applicant consulted with counsel and stated that he had been
advised of the basis for the contemplated action, its effect, the rights
available to him, and the effects of any action taken by him in waiving his
rights.  The applicant made a statement to the effect that he told his
recruiter about his background; however, he [the recruiter] told him he
could get around the issues and told him to deny any accusations, unless
they showed him direct proof.  He stated that he had a lot of medical
problems since his enlistment – problems with his feet and back, and after
coming to Redstone, problems with his bladder, resulting in a cyst being
removed.  He stated that in discussion with a fellow Soldier, he stated
that he originally wanted to be a combat engineer like [the individual who
bombed the federal building in Oklahoma City].  Another Soldier thought he
idolized that person and told the company commander that he was threatening
to blow up the barracks.  He stated that the company commander never did
check the story with the first Soldier.  He stated that because of that
incident he was being recommended for a general discharge.  He stated that
he deserved an honorable discharge.

14.  On 10 December 1999 the applicant's commanding officer recommended to
the separation authority that the applicant be separated from the Army and
that he receive a general discharge.  A Judge Advocate General Corps
officer determined that the separation action was legally sufficient, and
on 12 December 1999 the separation authority approved the recommendation.
The applicant was discharged on 23 December 1999.

15.  In a 5 March 2004 statement, the VA indicated that the applicant had
been awarded a 40 percent service connected disability rating effective on
                  1 December 2003.

16.  There is no medical records contained in the applicant's OMPF
(Official Military Personnel Files) and the applicant has not submitted
any.

17.  Army Regulation 635-200 provides for the separation of enlisted
personnel.  Paragraph 5-14 states, in effect, that a Soldier who concealed
an arrest record (not followed by a civil court conviction and not
reflecting charges pending at the time of enlistment) for any offense and
such concealment does not amount to a fraudulent entry may be separated.
Separation is based on the false statements made in enlistment documents
regarding the existence of an arrest record.  A Soldier so separated will
be awarded a character of service of honorable or under honorable
conditions.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not submitted any to show
that he was physically unfit at the time of his discharge in December 1999.
 The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.

2.  Absent evidence to the contrary, the applicant was physically fit for
discharge. Consequently, the applicant's request for physical disability
retirement or separation is not warranted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     22 December 2002.  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

___WM__  ___EP __  ___JM __  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.


                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106750                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050113                                |
|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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