RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050004222


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 discharge be upgraded to an
honorable or a medical discharge.

2.  The applicant states, in effect, that he was unable to perform his
active duty functions because he had a serious injury, which involved a
palellectomy
(excision or removal of the patella) and a shattered femur, which required
a steel rod to be inserted into his femur for 11 months.  The applicant
further states that he must have an operation because of pain and suffering
from his right leg injury. He was unable to function and continue with
active duty and now he has torn ligaments in both knees.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 July 1970.  The application submitted in this case is
dated
3 February 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 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 record shows that he was inducted into the Army of the
United States on 21 May 1968.  He served in military occupational specialty
(MOS) 94B10 (Cook) and the highest rank he attained while serving on active
duty was Private pay grade E-2.

4.  On 12 January 1969, while in AWOL status, the applicant was a passenger
in a vehicle, which had stopped at a traffic light when another vehicle
struck them from behind.  The applicant was taken to a civilian hospital
where he received treatment for his injuries and was released from the
hospital due to the minor nature of the injuries.  There was no police
report because the accident was not reported to civil authorities.  The
applicant through a sworn statement, stated that the injuries that he
received from the car accident was a pulled ligament in the right knee,
which was aggravated by a previous injury to the same knee received in a
motorcycle accident in August 1968.

5.  A Line of Duty Investigation was conducted and found that the injuries
that were sustained by the applicant were not in the line of duty and not
due to his own misconduct.

6.  On 23 January 1969, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave (AWOL) from 11 to 21 January 1969.  His
imposed punishment was a reduction to pay grade E-1, a forfeiture of $25.00
pay per month for 2 months, 30 days restriction (suspended for 30 days) and
30 days extra duty (suspended for 30 days).

7.  A Statement of Medical Examination and Duty Status (DA Form 2173) dated

7 February 1969, shows that the applicant was admitted to a military
hospital for a fracture of the right femur.  He was discharged and placed
on convalescent leave for 20 days.  The applicant’s medical record does not
indicate that he was given a medical profile for his injury.

8.  On 7 July 1969, the applicant accepted NJP for being AWOL from 29 June
to
5 July 1969.  His imposed punishment was 14 days restriction and 7 days
extra duty.

9.  On 31 July 1969, the applicant accepted NJP for disobeying a lawful
order and for being AWOL from 25 to 29 July 1969.  His imposed punishment
was a forfeiture of $30.00 pay, 14 days restriction and extra duty.

10.  On 13 November 1969, the applicant was convicted by a summary court-
martial of being AWOL from 16 to 31 October 1969.  He was sentenced to a
reduction to pay grade E-1, confinement at hard labor for 15 days, a
forfeiture of $40.00 pay and 30 days restriction.

11.  On 9 February 1970, the applicant accepted NJP for being AWOL from
1 to 4 February 1970.  His imposed punishment was a forfeiture of $14.00
pay,
7 days restriction and extra duty.

12.  On 11 March 1970, the applicant accepted NJP for being AWOL from 9 to
10 March 1970.  His imposed punishment was a forfeiture of $25.00 pay, 14
days restriction and extra duty.

13.  On 8 May 1970, the applicant was convicted by a special court-martial
of being AWOL from 23 March to 19 April 1970.  He was sentenced to a
forfeiture of $50.00 pay per month for 3 months and 45 days restriction.

14.  On 10 June 1970, the applicant under went a medical examination.  He
was found physically fit for retention.  A Report of Medical Examination
did indicate in item 74, (Summary of Defects and Diagnosis) Palellectomy,
however, nothing follows.

15.  On 28 July 1970, the applicant was reassigned to the Transfer Point
for separation processing.  On 31 July 1970, the applicant was released
from Active Duty under the provisions of Army Regulation 635-200,
Expiration Term of Service, with characterization of service Under
Honorable Conditions.

16.  He completed a total of 1 year, 11 months and 28 days of creditable
active military service and held the rank of Private pay grade E-2, on the
date of his separation.  The applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) then in effect, established the Army Physical Disability
Evaluation System (PDES) and set forth policies, responsibilities, and
procedures that applied in determining whether a Soldier is unfit because
of physical disability to reasonably perform the duties of his or her
office, grade, rank, or rating.

18.  Chapter 3 of the same regulation provides guidance on presumptions of
fitness.  It states that the mere presence of 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,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

19.  Chapter 4 of the disability regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of Soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier against the physical
requirements of the Soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a Soldier to be separated or retired because of physical
disability.

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be changed to a
medical discharge was carefully considered and found not to have merit.
There is no evidence, which indicates that he suffered from a medically
disqualifying condition that would have supported being processed through
the Army PDES at the time of his separation from active duty.  Although his
record shows he received treatment for an injury to the right knee and also
treatment for a fracture to the right femur, there is no indication in his
medical record that those injuries rendered him unfit to perform his
military duties at the time of his separation from active duty.

2.  The record further shows that subsequent to his discharge from active
duty he underwent a medical examination and was found fit for duty.  As a
result, there is an insufficient evidentiary basis to conclude he suffered
from a medically disqualifying condition that warranted his being processed
for a medical separation through the Army PDES.

3.  The applicant also requests that his discharge be upgraded.  The
applicant’s military record shows that he had an extensive disciplinary
history of military infraction that could have led to an undesirable
discharge; however, he was separated by reason of Expiration Term of
Service.  Therefore, it is concluded that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.

4.  Based on this record of indiscipline, the applicant's service does not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1970.  Thus, the time for him
to file a request for correction of any error or injustice expired on 30
July 1973.  However, he failed to 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 his failure to
timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  __LDS __  __KWL__  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                 |AR20050004222                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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