RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 October 2005
      DOCKET NUMBER:  AR20050003773


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Ms. LaVerne Douglas               |     |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
changed to a general discharge or medical discharge.

2.  The applicant states at the time of his discharge he was 17 years old
and very confused.  He states that he should have been given a medical
discharge because he was never medically qualified to serve.  He also
states that since his discharge he has a family and has had no trouble.

3.  The applicant provides a recommendation from the intermediate
commander, dated 18 November 1963.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 November 1963.  The application submitted in this case is
dated 3 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 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 previous Memorandum of Consideration (considered around 1975) is
not available and this case is reviewed de novo.

4.  The applicant was born on 27 February 1945.  On 11 April 1962, the
applicant underwent an enlistment physical examination and was found
qualified for enlistment and airborne duty with a physical profile of
111111.  He enlisted on
11 April 1962 for a period of 3 years.  He successfully completed basic
combat training and advanced individual training in military occupational
specialty (MOS) 111.10 (light weapons infantryman).  He was disqualified
from airborne training in October 1962.

5.  On 5 December 1962, in accordance with his plea, the applicant was
convicted by a special court-martial of being absent without leave (AWOL)
from 13 October 1962 to 6 November 1962.  He was sentenced to be confined
at hard labor for 6 months, to forfeit $55 per month for 6 months, and to
be reduced to
E-1.  On 6 December 1962, the convening authority approved the sentence but
suspended the portion of the sentence to confinement at hard labor for 6
months.

6.  On 8 November 1963, in accordance with his pleas, the applicant was
convicted by a special court-martial of three specifications of being AWOL
(17 April 1963 to 18 May 1963; 25 May 1963 to 3 August 1963; and 21 August
1963 to 17 October 1963).  He was sentenced to forfeit $55 per month for 6
months, to be confined at hard labor for 6 months, and to be reduced to E-
1.  On 12 November 1973, the convening authority approved the sentence.

7.  On 14 November 1963, the applicant underwent a psychiatric evaluation
and he was diagnosed with a passive dependency, passive-aggressive
personality, moderate.  The psychiatrist found the applicant to be mentally
responsible, both to distinguish right from wrong and to adhere to the
right, and that he had no disqualifying mental or physical defects
sufficient to warrant consideration by a Physical Evaluation Board or other
disposition through medical channels.  The psychiatrist also recommended
that the applicant be considered under the provisions of Army Regulation
635-209 (for unsuitability).

8.  The applicant was notified of his pending separation under the
provisions of Army Regulation 635-208 for unfitness due to frequent
involvement in incidents of a discreditable nature with civil or military
authorities.  The unit commander stated that discharge under the provisions
of Army Regulation 635-209 (unsuitability) would be inappropriate as this
would entitle the applicant to separation under honorable conditions and
that this characterization of service should be reserved for those whose
character of service so merits.

9.  On 15 November 1963, after consulting with counsel, the applicant
declined counsel, waived consideration of his case by a board of officers,
and elected not to make a statement in his own behalf.

10.  On 17 November 1963, the applicant underwent a separation physical
examination and was found qualified for separation with a physical profile
of 111111.

11.  On 18 November 1963, the intermediate commander concurred with the
recommendation for separation under the provisions of Army Regulation 635-
208 for unfitness.  He stated that although the psychiatrist recommended
discharge for unsuitability, he concurred with the unit commander’s
recommendation for separation due to the applicant’s demonstrated
unfitness.

12.  On 27 November 1963, the separation authority approved the
recommendation for separation under the provisions of Army Regulation 635-
208 for unfitness and directed that the applicant be issued an undesirable
discharge.
13.  On 29 November 1963, the applicant was discharged with an undesirable
discharge and a characterization of service as under other than honorable
conditions under the provisions of Army Regulation 635-208 for unfitness
due to frequent involvement in incidents of a discreditable nature with
civil or military authorities.  He had served 9 months and 23 days of
creditable active service with 287 days of lost time due to AWOL and
confinement.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

15.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  Section
II of the regulation provided, in pertinent part, for the separation of
personnel for frequent incidents of a discreditable nature with civil or
military authorities.  An undesirable discharge was normally considered
appropriate.

16.  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.

17.  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.

18.  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.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he successfully completed basic combat
training and advanced individual training.

2.  The applicant’s record of service included two special court-martial
convictions and 287 days of lost time.  As a result, his record of service
was not satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general discharge.

3.  The evidence of record does not support the applicant’s contention that
he was never medically qualified to serve.  Evidence of record shows the
applicant was found qualified for enlistment, airborne duty, and
separation.

4.  Although the applicant was diagnosed with a personality disorder, the
psychiatrist found him to be mentally responsible and that he had no
disqualifying mental or physical defects sufficient to warrant
consideration by a Physical Evaluation Board or other disposition through
medical channels.  There is no evidence of record which shows the applicant
was diagnosed with a medical or mental condition prior to discharge on 29
November 1963.  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.

5.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

6.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 29 November 1963; therefore, the time for the
applicant to file a request for correction of any injustice expired on 28
November 1966.  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

JA______  JM______  LD______  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.




            __James Anderholm_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003773                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19631129                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |108.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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