RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          11 August 2005
      DOCKET NUMBER:  AR20050001228


      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. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael Flynn                 |     |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 general discharge be upgraded to
honorable or a medical discharge.  He also requests that his narrative
reason for separation be removed from his records.

2.  The applicant states, in effect, he was mentally and physically injured
during his active duty service and when he was released he did not realize
how sick he was.  He contends that fatigue was a major factor in his going
absent without leave (AWOL).  He contends that his mental and physical
conditions have been established by Department of Veterans Affairs (DVA)
hospitals all around the nation and his conditions are recognized as a
factor for job disability during and after government service.

3.  The applicant provides a DVA psychology evaluation, dated 25 March
2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 June 1982.  The application submitted in this case is dated
16 January 2005.

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 on 1 August 1979 for a period of 4 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 13B (cannon crewman).

4.  On 12 April 1980, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order and using disrespectful language
toward his superior noncommissioned officer.  His punishment consisted of a
reduction to  E-3, a forfeiture of pay, restriction, and extra duty.

5.  On 24 February 1982, nonjudicial punishment was imposed against the
applicant for being AWOL from 3 February 1982 to 15 February 1982.  His
punishment consisted of a reduction to E-3, a forfeiture of pay, and extra
duty.

6.  The applicant's Personnel Qualification Record, Part 1, prepared on 3
April 1982, shows his physical profile factors as 112111.

7.  On 22 April 1982, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

8.  On 24 May 1982, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31,
under the Expeditious Discharge Program for failure to maintain acceptable
standards for retention.  The unit commander cited the applicant's poor
attitude and lack of motivation.

9.  On 25 May 1982, the applicant consulted with counsel and acknowledged
that he had been advised of the basis for the contemplated action to
separate him under the provisions of Army Regulation 635-200, chapter 5.
He also acknowledged that if he were issued a general discharge he might
expect to encounter substantial prejudice in civilian life and he elected
not to make a statement on his own behalf.

10.  On 1 June 1982, the separation authority approved the recommendation
for separation and directed that the applicant be furnished a general
discharge.

11.  Accordingly, the applicant was discharged on 11 June 1982 with a
general discharge under the provisions of Army Regulation 635-200, chapter
5, paragraph 5-31, under the Expeditious Discharge Program for failure to
maintain acceptable standards for retention.  He had served 2 years, 9
months and 27 days of total active service with 14 days of lost time due to
AWOL.

12.  Item 28 (Narrative Reason for Separation) on the applicant's DD Form
214 (Certificate of Release or Discharge from Active Duty) shows the entry,
"Failure to maintain acceptable standards for retention."

13.  There is no evidence in the available records which shows the
applicant was diagnosed with any mental or medical condition prior to his
separation on
11 June 1982.

14.  The applicant provided a DVA psychology evaluation, dated 25 March
2004, which shows he was granted 30 percent service connected disability
compensation and was diagnosed with schizoaffective disorder, post
traumatic stress disorder, cocaine dependence, alcohol dependence, and
cannabis abuse.

15.  On 21 June 1983, the Army Discharge Review Board (ADRB) denied the
applicant's request for a discharge upgrade to honorable.

16.  Army Regulation 635-200, in effect at the time, set for the basic
authority for the separation of enlisted personnel.  The pertinent
paragraph in chapter 5 provided that members who had completed at least 6
months but less than 36 months of continuous active service on their first
enlistment and who had demonstrated that they could not or would not meet
acceptable standards required of enlisted personnel because of poor
attitude, lack of motivation, lack of self-discipline, inability to adapt
socially or emotionally, or failure to demonstrate promotion potential may
be discharged.  It provided for the expeditious elimination of substandard,
nonproductive Soldiers before board or punitive action became necessary.
No member would be discharged under this program unless he/she voluntarily
consented to the proposed discharge (This requirement was deleted with
interim change 4 dated 1 April 1982).  Issuance of an honorable discharge
certificate was predicated upon proper military behavior and proficient
performance of duty during the member's current enlistment with due
consideration for the member's age, length of service, grade and general
aptitude.  A general discharge is a separation from the Army under
honorable conditions of an individual whose military record was not
sufficiently meritorious to warrant an honorable discharge.

17.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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.

19.  Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  It states that the mere presence 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, or rank.  It states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation or retirement indicates
that a Soldier is fit.

20.  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.  Numerical designators "2" and "3" indicate that an individual
has a medical condition or physical defect which requires certain
restrictions in assignment within which the individual is physically
capable of performing military duty.  The individual should receive
assignments commensurate with his or her functional capacity.

21.  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 Army Board for Correction of
Military Records (ABCMR) should commence on the date of final action by the
ADRB.  In complying with this decision, the ABCMR 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 record of service included three nonjudicial
punishments and
14 days of lost time.  As a result, his record of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

2.  Although the applicant contends that he was mentally and physically
injured during his active duty service, he was found qualified for
separation with a physical profile of 112111 by competent medical
authorities.  There is no medical evidence of record that shows the
applicant had any mental or medical condition prior to his discharge on 11
June 1982.  There is also no evidence of record to show he was ever
medically unfit to perform his duties.  Therefore, there is insufficient
evidence to show the applicant was eligible for physical disability
processing and there is no basis for a medical discharge.

3.  The DVA does not fall under the purview of this Board or the Department
of Defense.  The DVA, operating under its own policies and regulations,
assigns disability ratings as it sees fit.

4.  The narrative reason for separation used in the applicant’s case is
correct and there is no basis for removing it from the applicant's DD Form
214.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 21 June 1983.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 20 June 1986.  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

JS_____  DJ______  MF______  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 Slone__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001228                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19820611                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 5                    |
|DISCHARGE REASON        |Expeditious Discharge Program for       |
|                        |failure to maintain acceptable standards|
|                        |for retention                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]