RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050003941


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. 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 that his general discharge (GD) be changed to
show that he was separated by reason of physical disability.

2.  The applicant states that he spent time in a Veterans Administration
(VA) hospital, was diagnosed as paranoid, and had a nervous breakdown due
to his service in Vietnam.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 July 1970, the date of his discharge.  The application
submitted in this case is dated 8 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's military records show that he entered active duty (AD)
on 27 December 1968, as a cook (94B).  He served in Vietnam from
28 February 1970 to 16 July 1970.  He was promoted to private first class
(PFC/E-3) on 5 March 1970.

4.   On 1 April 1969, the applicant received nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ), for appearing in an
unclean uniform on 30 March 1969.  His punishment consisted of a forfeiture
of pay and 7 days restriction and extra duty.

5.  He was convicted by two special courts-martial of being absent without
leave (AWOL).  He was AWOL from 20 June to 28 July 1969 and from 18 August
to 11 September 1969. His sentences consisted of confinement at hard labor,
forfeitures of pay, and reduction to pay grade E-1.



6.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 11 to 15 May 1970 (6 days).

7.  The applicant underwent a psychiatric evaluation; however, it is
unavailable for review.

8.  The applicant's medical records are also not available.  There is no
indication that the applicant had medical or psychiatric issues or that he
was serving with any type of assignment limitations.  Item 17 (Physical
Status) of the applicant's Form 20 shows he has a physical profile of P-1,
U-1, L-1, H-1, E-1, and S-1.     He was given a Code A.  Item 18
(Assignment Limitations), of the applicant's       DA Form 20 is blank.

9.  On 30 June 1970, the applicant’s commander initiated action to separate
the applicant from the service under the provisions of AR 635-212, for
unsuitability.  He based his recommendation on the applicant's apathy
toward the military service and character and behavior disorders manifested
by frequent periods of AWOL.  After consulting with counsel, the applicant
waived his rights and elected not to submit a statement in his own behalf.

10.  On 1 July 1970, the applicant’s commander submitted a recommendation
to separate the applicant from the service under the provisions of Army
Regulation 635-212, for unsuitability.

11.  On 16 July 1970, the separation authority approved the recommendation
for the applicant's discharge and directed that he be furnished a GD.  He
was discharged on 18 July 1970.  He had a total of 1 year, 6 months, and
22 days of creditable service and had 69 days of lost time due to AWOL on
his discharge date.

12.  There is no evidence the applicant requested a separation medical
examination prior to his separation from AD and his medical records are
unavailable for review.

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

14.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It stated, in
pertinent part, that individuals would be separated for unsuitability due
to aptitude, character and behavior disorders, apathy, alcoholism, or
enuresis and that the individual would be furnished an honorable or general
discharge.
15.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

16.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

17.  Army Regulation 40-501, chapter 7, physical profiling, 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. 
Numerical designator 4 indicates that an individual has one or more
medical conditions or physical defects of such severity that performance
of military duty must be drastically limited.  The numerical designator 4
does not necessarily mean that the individual is unfit because of physical
disability as defined in Army Regulation 635-40.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's psychiatric evaluation is unavailable for review.  His
medical records are also unavailable for review and there is no evidence to
show that he requested a separation medical examination from AD or that he
had been referred to medical channels to undergo processing for physical
disability reasons.

2.  There is no evidence, and the applicant has provided no medical
evidence, to show that he spent time in a VA hospital either while he was
on AD or post service, and that he was diagnosed as paranoid and had a
nervous break down due to his Vietnam service.  The evidence clearly shows
he was discharged under the provision of Army Regulation 635-212, for
unsuitability, and he received a GD.

3.  Based on the evidence provided, the applicant is not entitled to an
upgrade of his GD or a change to the reason and authority for his discharge
to show that he was separated by reason of physical disability.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 July 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 17 July 1973.  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

_JBG____  _RTD___  __SWF__  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 T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003941                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19700718                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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