RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050005161


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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 his disability rating be increased and his
separation with severance pay be changed to a medical retirement.

2.  The applicant states the physician who completed his medical
examination and Narrative Summary failed to address his psychiatric
conditions.

3.  The applicant provides an extract from his service medical records; his
Medical Evaluation Board (MEB) Narrative Summary; and a Standard Form 88
(Report of Medical Examination) dated 11 April 1985.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 February 1987, the date he was removed from the
Temporary Disability Retired List (TDRL).  The original application
submitted in this case was dated 8 February 2001.

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 in the Regular Army on 1 September 1976.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 9MOS) 63B (Wheel Vehicle Mechanic).  He was
later reclassified into MOS 52D (Power Generation Equipment Repairer).

4.  On 5 May 1977, the applicant was seen by Mental Health Clinical
Services to determine if he had a conversion reaction, passive-aggressive
personality or an obsessive-compulsive type [disorder] deteriorating toward
a schizo-affective [disorder].  He was to have a follow up on a weekly
basis until [a condition was] established.  No additional medical records
are available.

5.  On 29 May 1980, the applicant reenlisted for 6 years.

6.  On 13 September 1982, the applicant was convicted by a summary court-
martial of disobeying a lawful order and being derelict in the performance
of his duties.  His punishment included a reduction to pay grade E-4.

7.  An MEB Narrative Summary dated 11 April 1985 shows the applicant was
evaluated for a chief complaint of bilateral leg pain, right greater than
left.  He was diagnosed with (1) stress reaction both tibiae, right greater
than left; and (2) minimal elevation of liver function tests, asymptomatic,
etiology undetermined, no treatment indicated.  On 25 April 1985, an MEB
referred him to a Physical Evaluation Board (PEB) due to these two
diagnoses.  On 29 April 1985, the applicant agreed with the MEB's findings
and recommendation.

8.  On 3 May 1985, a PEB found the applicant to be physically unfit due to
stress fractures in the tibiae manifested by pain in the legs.  Diagnosis 2
was found to be not ratable.  He was placed on the TDRL with a 40 percent
disability rating.

9.  On 5 August 1985, the applicant was separated from active duty and
placed on the TDRL the next day.

10.  On 5 November 1986, a TDRL reexamination found the applicant's
condition had improved but insufficiently so to find him fit for duty.  He
was found to be unfit for duty due to status post stress reaction with
persistent pain and abnormal bone scan with a 20 percent disability rating.
 The applicant apparently disagreed with the findings at first.  On 22
December 1986, he decided to agree with the findings based on the premise
his severance pay would be computed at pay grade E-5.  At that time, he
noted two items needed to be corrected – his rank was to be upgraded to E-5
and his address had changed.  He was removed from the TDRL effective 25
February 1987 with a 20 percent disability rating and discharged with
severance pay.

11.  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.
 In pertinent part, it states the mere presence of an impairment does not,
of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant was seen by Mental Health Clinical
Services in May 1977 to determine if he had a mental disorder.  He was to
have had a follow up on a weekly basis until such a disorder was
established.  However, there is no evidence to show he had those follow-ups
or that a mental disorder was ever diagnosed.  He continued to serve
successfully in the Army for years after he was seen by Mental Health
Clinical Services in May 1977, reenlisting in the Army in May 1980.

2.  The applicant was evaluated by an MEB in May 1985 for a chief complaint
of bilateral leg pain.  He was diagnosed with two medical conditions,
neither of which was a mental disorder.  He agreed with the findings of the
MEB.  After a TDRL reexamination found him to be unfit due to status post
stress reaction with persistent pain and abnormal bone scan with a 20
percent disability rating, it appears his only concern with the findings
was that his severance pay was originally to be based upon pay grade E-4.
After a grade determination upgraded his rank to E-5, he agreed with the
findings.

3.  There is no evidence of record and the applicant provides none to show
he was unfit due to a mental disorder at the time he was evaluated by the
MEB or at the time he was removed from the TDRL.  Indeed, there is no
evidence of record and the applicant provides none to show he had a mental
disorder at the time he was evaluated by the MEB or at the time he was
removed from the TDRL.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 February 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    24 February 1990.  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

__bje___  __huf___  __rr______  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.




                                  __Barbara J. Ellis____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005161                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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