RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 NOVEMBER 2005
      DOCKET NUMBER:  AR20050006649


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Page                   |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 discharge be changed to a medical
discharge.

2.  The applicant states that he was given an honorable discharge but,
feels that it should have been a medical discharge.  He said that he had
kidney cancer that was never checked by a doctor and his kidney has since
been removed.  Additionally, the applicant states that he has a small brain
tumor that was not checked by the Army and therefore, he should be entitled
to a medical discharge with some type of disability.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 January 1977, the date of separation.  The application
submitted in this case is dated 28 January 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 record shows he enlisted in the Regular Army and
entered active duty on 6 April 1976.  He was honorably discharged on 4
January 1977.  He had 8 months and 28 days of active federal service at the
time of his discharge.

4.  On 1 October 1976, nonjudicial punishment (NJP) was imposed against the
applicant for sleeping while on duty.  His punishment consisted of
forfeiture of $75.00 for 1 month and extra duty for 14 days.





5.  On 14 October 1976, the applicant underwent a medical examination.  The
medical doctor summarized the applicant’s medical conditions in item 25 of
the “Report of Medical History.”  The doctor noted that the applicant
suffered with headaches and vision problems but, stated that there were “No
other significant medical problems.”  The medical doctor also checked the
block indicating that the applicant was qualified for separation under Army
Regulation 635-200.

6.  On 20 Oct 1976, the applicant underwent a mental status evaluation.
The evaluation noted that the applicant had no significant mental illness,
was mentally responsible, able to distinguish right from wrong, able to
adhere to the right, has the mental capacity to understand and participate
in board proceedings, and met the retention standards prescribed by
regulation.  Additionally, the doctor stated in remarks, that the applicant
gave a history of active homosexuality since adolescence but, he declines
any counseling at this time.  The doctor noted that there was no evidence
of any significant mental illness at this time and that the applicant was
psychiatrically cleared for any administrative action deemed appropriate by
the command.

7.  On 26 October 1976, NJP was imposed against the applicant for being
absent without leave (AWOL) from 18 October 1976 until 19 October 1976.
His punishment consisted of forfeiture of $90.00 for 1 month and extra duty
for         14 days.

8.  On 13 December 1976, the company commander notified the applicant of
the proposed discharge action under the provisions of Army Regulation 635-
200.  He cited the applicant’s failure to adapt satisfactorily to military
life as the reason for separation.

9.  On 17 December 1976, the applicant consulted with military counsel.
After being advised of the basis for the contemplated separation, its
effects and the rights available to him, he personally made the choice to
waive his rights to submit statements on his behalf.  The applicant
acknowledged that he may encounter substantial prejudice in civilian life
if a general discharge under honorable conditions is issued.  He also
acknowledged that he had been provided the opportunity to consult with an
officer of the Judge Advocate General Corps.

10.  On 22 December 1976, the battalion commander approved the applicant’s
Expeditious Discharge with the issuance of an Honorable Discharge
Certificate.  The commander stated that after careful consideration, he
determined that the applicant has failed to meet acceptable standards for
continued military service.

11.  Army Regulation 635-200 provides the policy and sets forth the
procedure for administrative separation of enlisted personnel.  Chapter 5,
as then in effect, provided, in pertinent part, for the Expeditious
Discharge Program (EDP).  This program provided that an individual who had
completed at least 6 months, but less than 36 months of active duty and who
demonstrated (by poor attitude, lack of motivation, lack of self-
discipline, inability to adapt socially or emotionally or failure to
demonstrate promotion potential) that they could not or would not meet
acceptable standards could be separated.  Such personnel were issued a
general or honorable discharge, as appropriate.

12.  Army Regulation 635-40, (Physical Evaluation for Retention,
Retirement, or Separation) paragraph 3-2b(2), in effect at the time,
provides that when a member is being separated by reasons other than
physical disability, his or her continued performance of assigned duty
commensurate with his or her rank or grade until he or she is scheduled for
separation or retirement creates a presumption that he or she is fit. This
presumption can be overcome only by clear and convincing evidence that he
or she was unable to perform his or her duties for a period of time or that
acute grave illness or injury or other deterioration of physical condition,
occurring immediately prior to or coincident with separation, rendered the
member unfit.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, which
shows that he had any medical problems at the time of his separation.  The
applicant’s separation physical examination and mental evaluation,
conducted by competent medical authority, determined that the applicant was
then medically fit for retention or appropriate separation.  Accordingly,
the applicant was separated from active duty for reasons other than
physical disability.

2.  The elimination proceedings verified that the applicant was afforded
due process.  He was given an opportunity to raise any issues he deemed
appropriate during his separation processing and elected not to make any
statements on his own behalf.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 January 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           3 January 1980.  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

__TP____  __EA ___  __JS____  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.




                                  _____ Thomas Pagan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006649                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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