RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050005165


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 an under honorable conditions discharge.

2.  The applicant states that he should have received a medical discharge
based on the psychiatric evaluation, labeling him as a "Passive-Aggressive
Personality." He continues that the problems started from the court-martial
while in Vietnam.  The applicant further stated he was never convicted for
drugs; however, he blames the military for his use of marijuana and the
physical ailments (shin rashes and warts on his feet) while in Vietnam.

3.  The applicant provides an incomplete copy of a letter from the
Department of Veterans Affairs, dated 21 June 2004; an Army Board for
Corrections of Military Records (ABCMR) letter, dated 5 September 2002;
pages 3 and 4 of ABCMR Memorandum of Consideration Docket Number
AR2002070972; a two-page self-authored letter, undated; a DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge) with an
effective date 13 July 1969; Social Security Administration Office of
Hearings and Appeals Decision, dated 28 February 2003; and seven-pages of
Hobbs Municipal School Record from Hobbs, New Mexico for the school years
1954 through 1961.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 July 1969, the date of his discharge.  The application
submitted in this case is dated 23 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 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 was inducted in the Army on 17 January 1968 for a period
of 2 years.  After completion of basic and advanced individual training, he
was awarded military occupational specialty 94B (Cook).  The applicant
served in Vietnam for the period 12 June 1968 through 10 July 1969.

4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following four separate occasions for the offenses indicated:  on 25
July 1968, for failure to go to his appointed place of duty at the
prescribed time; on 4 April 1969, for absenting himself from his place of
duty; on 5 February 1969, for absence without leave (AWOL); on 18 April
1969, for failure to go to his appointed place of duty, for disobeying a
lawful order, and for having an "unauthorized female" in the barracks.

5.  On 23 May 1969, a special court-martial convicted the applicant for
being disrespectful towards a commissioned officer; for disobeying a lawful
order; for assaulting an enlisted soldier; and for assaulting a
commissioned officer.  The resultant sentence included confinement at hard
labor for six months, forfeiture of $70.00 per month for six months, and
reduction to the rank of private/pay grade E-1.

6.  Records contain a 935th Medical Detachment memorandum, which shows the
applicant was evaluated at the U.S. Army Vietnam (USARV) Stockade on
17 June 1969.  This memorandum indicates the applicant was advised of and
understood his rights.  The examining medical officer, serving in the
capacity as a psychiatrist, indicated that the applicant had numerous run-
ins with military authority, all with apparently no effect upon his
behavior.  The medical officer diagnosed the applicant with "Passive-
Aggressive Personality, chronic, moderate, manifested by resistance to
authority; and severe lack of insight."  The medical officer further
indicated that the diagnosis was considered not in the line of duty.

7.  The examining medical officer found the applicant met the retention
standards and there is no psychiatric disease or defect which would warrant
disposition through medical channels.  The medical officer continues that
the applicant is mentally responsible, able to distinguish right from wrong
and to adhere to the right, and has the mental capacity to understand and
participate in board proceedings.   The medical officer recommended the
applicant be administratively separated from the military under the
provisions of Army Regulation 635-212 (Discharge – Unfitness and
Unsuitability).

8.  The applicant's service records contain Standard Form 89 (Report of
Medical History), dated 19 June 1969, wherein the applicant annotated that
he was in good health.  This form also contained an entry that the
applicant had hay fever.  The applicant authenticated this form in his own
hand.

9.  Item 76 (Physical Profile) of the applicant's Standard Form 88 (Report
of Medical Examination), dated 19 June 1969, shows the numeral "1" in all
areas of his physical profile which indicated that he possessed a high
level of medical fitness and was determined qualified for separation.  A
medical corps officer authenticated this document.

10.  On 27 June 1969, the unit commander notified the applicant that he was
being recommended for discharge under the provisions of Army Regulation 635-
212, by reason of unfitness.  The memorandum further informed the applicant
of his right to present his case before a board of officers, to submit any
statements on his behalf, to be represented by counsel, and to waive the
above rights in writing.

11.  Records contain a US Army Correctional Holding Detachment, USARV,
memorandum, dated 30 June 1969, which shows the applicant had been advised
by counsel about the discharge process under the provisions of Army
Regulation 635-212 for unfitness.  This memorandum also shows that the
applicant waived his rights to representation by his appointed counsel, to
personally appear or have his case considered by a board of officers, and
to submit any statements on his own behalf.

12.  This memorandum further shows that the applicant acknowledged he could
be discharged under other than honorable conditions and furnished a
Undesirable Discharge Certificate, that he may be deprived of many or all
Army benefits, that he may be deprived of his rights and benefits as a
veteran under both Federal and State law.  The applicant also acknowledged
that he may expect to encounter substantial prejudice in civilian life
because of a discharge under other than honorable conditions.  Both the
applicant and his counsel authenticated this document.

13.  On 30 June 1969, the applicant's unit commander submitted a
recommendation to discharge the applicant from the service under the
provisions of Army Regulation 635-212 for reason of unfitness and to be
furnished with an Undesirable Discharge Certificate.  This recommendation
stated that the applicant's performance has been characterized by
intentional shirking of his duties, and extreme difficulty in adhering to
military authority.

14.  On 7 July 1969, the major general in command of Headquarters, Support
Troops, USARV, approved the recommendations to discharge the applicant
under the provisions of Army Regulation 635-212 and furnish him an
Undesirable Discharge Certificate.

15.  The applicant's DD Form 214 shows that he was discharged on 13 July
1969, under the provisions of Army Regulation 635-212, for unfitness and
issued an Undesirable Discharge Certificate with service characterized as
under other than honorable conditions.  He had served 1 year, 3 months and
20 days of net active service and had 67 days of lost time.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for
upgrade of his discharge.  On 15 July 1977, the ADRB considered his case
and found that he had been properly and equitably discharged.  As a result,
the ADRB voted unanimously to deny his request.

17.  The applicant submitted a two-page self-authored letter indicating
that he had other problems while in the military.  He states he suffered
from hay fever and allergies which he had all his life.  The applicant
states at the age of 18 he tried to enlist in the Army; however, was turned
down.  He continues that at the age of 20, the Army drafted him, but claims
he was not ready to serve.  However, the applicant did not indicate the
basis for this comment.  The applicant concludes that the Army and Vietnam
was the root of all of his problems during his service and post-service.

18.  Army Regulation 635-212 in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness and unsuitability.  Paragraph 6a(4) of the
regulation provided, in pertinent part, that members with an established
pattern of shirking were subject to separation for unfitness.  An
undesirable discharge was normally considered appropriate for members
separating under these provisions.

19.  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.  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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), paragraph 3-1, provides that the mere presence of an
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 member reasonably may be expected to perform because of his or
her office, rank, grade or rating.

21.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that since the psychiatric evaluation diagnosed
him with a "Passive-Aggressive Personality" he should have been discharged
for medical reasons.

2.  A psychiatric evaluation diagnosed the applicant with a "Passive-
Aggressive Personality."  However, the psychiatrist also found that this
diagnosis was considered not in the line of duty, and that the applicant
met Army retention standards.  In absence of medical records to the
contrary, the applicant was found to be medically fit for separation with a
physical profile of 111111.  Accordingly, the applicant was separated from
active duty for reasons other than physical disability.


3.  The applicant contends that when he was drafted in the Army, he was not
ready to serve.  However, the applicant did not provide any evidence to
support this contention.  There is no evidence that indicates that the
applicant was any less mature than other inductee of the same age who
successfully completed military service.

4.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Additionally, his service is deemed unsatisfactory in
view of his bad conduct.  Therefore, he is not entitled to either a general
or an honorable discharge.

6.  The type of discharge directed and the reason for discharge was
appropriate considering all of the facts of the case.

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

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 July 1977.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 14 July 1980.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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____  _TEO____  __CK____  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 E. Anderholm
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005165                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/07/13                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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