RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 December 2005
      DOCKET NUMBER:  AR20050003308


      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. Richard Dunbar                |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Mr. Scott Faught                  |     |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 undesirable discharge be
upgraded to honorable or a medical discharge.

2.  The applicant states he was 18 years old at the time and suffering from
a mental disorder that was undiagnosed.  He contends that he now knows he
was ill and could not conform to behavior required to perform his duties.
He also states his records will reflect that he did a fine job and served
his country honorably until he had a psychiatric breakdown.

3.  The applicant provides medical records from the Springfield Hospital
Center in Sykesville, Maryland.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 September 1969.  The application submitted in this case is
dated
18 October 2004; however, the application was received in this office on 4
March 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 limitations 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 17 February 1969 for a period of 3 years.
While in basic combat training, on 8 April 1969, the applicant was
convicted by a special court-martial of damaging military property.  He was
sentenced to be confined at hard labor for 3 months and to forfeit $68 per
month for 3 months.  On 18 April 1969, the convening authority approved
only so much of the sentence as provided for confinement at hard labor for
3 months and forfeiture of $50 pay per month for 3 months, but the
confinement was suspended for 3 months with automatic remission thereafter
unless the suspension was sooner vacated.

4.  While in advanced individual training, on 11 June 1969, nonjudicial
punishment was imposed against the applicant for disobeying two lawful
orders.  His punishment consisted of a forfeiture of pay, restriction, and
extra duty.

5.  While in advanced individual training, on 15 July 1969, the applicant
was convicted by a special court-martial for larceny.  He was sentenced to
be confined at hard labor for 6 months, to forfeit $84 per month for 6
months, and to be reduced to E-1.  On 25 July 1969, the convening authority
approved the sentence but suspended confinement at hard labor in excess of
one month.

6.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant’s DD Form
214 (Report of Transfer or Discharge) shows that he was discharged with an
undesirable, under other than honorable conditions discharge on 4 September
1969 under the provisions of Army Regulation 635-212, for unfitness due to
frequent incidents of a discreditable nature with civil or military
authorities.  He had served a total of 5 months and 11 days of creditable
active service with 39 days of lost time due to confinement.

7.  There is no evidence of record which shows the applicant was diagnosed
with a medical or mental condition prior to his discharge.

8.  There are no service medical records contained in the available
records.

9.  In support of his claim, the applicant provided medical records (dated
1994 to 2003) from the Springfield Hospital Center in Sykesville, Maryland.
 In summary, these medical records show the applicant was determined to be
not mentally competent and that he had been admitted to that facility on
four occasions.  The applicant had been charged with murder, which occurred
in 1979, and was found criminally not responsible because of reason of
insanity in 1986.  There is no evidence of psychiatric examinations prior
to this time period.

10.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set for the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  An undesirable discharge was normally
considered appropriate.

12.  Army Regulation 635-200 is the current regulation governing the
separation of enlisted personnel.  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.


13.  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.

14.  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, disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant was diagnosed
with a medical or mental condition prior to his discharge on 4 September
1969.  There is no evidence of record to show he was ever medically unfit
to perform his duties.  In addition, since he separated under a regulatory
provision that authorized a characterization of discharge of under other
than honorable conditions, it does not appear he was eligible for physical
disability processing.  Therefore, there is no basis for a medical
discharge.

2.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request for an honorable or general discharge.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 4 September 1969; therefore, the time for the
applicant to file a request for correction of any injustice expired on 3
September 1972.  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

RD_____  JG______  SF______  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.




            ____Richard Dunbar__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003308                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19690904                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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