RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050016189


      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. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 undesirable discharge be upgraded to a
general under honorable conditions discharge.

2.  The applicant states that he received a head injury while on active
duty and that injury caused a change in his behavior.

3.  The applicant did not provide any additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 December 1982, the date of his separation.  The
application submitted in this case is dated 9 September 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 service records are incomplete.  However,
there are sufficient records available to conduct a fair and impartial
review of this case.

4.  The applicant's records contain a DD Form 214 (Certificate of Release
or Discharge from Active Duty).  This form shows that the applicant served
on active duty as an enlisted Soldier during the period 27 April 1979
through 20 December 1982.

5.  The applicant’s records do not show any significant acts of valor
during his military service.

6.  On 12 October 1979, nonjudicial punishment was imposed against the
applicant for stealing a purse containing $8.00.  His punishment consisted
of reduction to private/pay grade E-1, extra duty for 30 days (suspended)
and forfeiture of $200.00 per month for three months (suspended).

7.  On 13 September 1981, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from on or about 2100 hours
on 7 September 1981 to on or about 2330 hours on 7 September 1981.  His
punishment consisted of forfeiture of $200.00 per month for two months and
restriction to place of duty, place of worship, and dining facility for 29
days.

8.  The facts and circumstances of the applicant's separation are not
available for review with this case.

9.  The applicant's medical records contain a Medical Record-Narrative
Summary (Clinical Resume), dated 14 April 1982.  This summary shows that
the applicant report that he was experiencing destructive urges,
destructive behavior, auditory hallucinations, and unexplainable episodes
of sadness and anxiety.

10.  The summary continues that there were no charges pending against the
applicant at that the time of the evaluation and that he was in good health
until September 1981 when he fell from a 5-ton truck, landing on his head
but not losing consciousness.  The summary continues that subsequent to the
fall, the applicant began experiencing severe headaches which did not
respond to treatment.  He was later diagnosed with a hematoma which was
surgically reduced on 11 November 1981.

11.  The Psychiatrist that prepared the summary found that the applicant
had incurred a closed head injury and a subdural hematoma.  The
Psychiatrist continued that the applicant suffered from Post concussive
syndrome with headache, easy irritability, noise intolerance, auditory
hallucinations, unexplained episodes of sadness and anxiety, and
destructive urges and behaviors.

12.  The applicant's records contain an Inpatient Treatment Record Cover
Sheet which shows the applicant was admitted to the United States Army
Hospital in Fort Carson, Colorado, for treatment of injuries sustained as a
result of a fall from a 5-ton truck in September 1981.  This form shows
that the applicant was diagnosed with Post-Traumatic Stress Disorder,
Psychological Factors affecting his physical condition, and that he had
previously undergone surgery for a right subdural hematoma.

13.  The DD Form 214 issued at the time of the applicant's discharge shows
that he was separated under the provisions of chapter 10 of Army Regulation
635-200 (Personnel Separations) for the good of the service in lieu of
general court martial.  This form was authenticated in his own hand.

14.  The applicant's application shows that he was assisted with the
preparation of his case by the Disabled American Veterans (DAV).  On 24 May
2006, the staff of the ABCMR requested that the DAV conduct a review of the
applicant's records.  The DAV did not respond to the request for a review.

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

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provides, in pertinent part, that a member who has committed an
offense or offenses for which the authorized punishment includes a punitive
discharge may at any time after the charges have been preferred, submit a
request for discharge for the good of the service in lieu of trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

17.  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.

18.  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 contends his under other than honorable conditions
discharge should be upgraded because he had serious mental problems as a
result of a head injury.

2.  The applicant's records clearly show that he sustained a serious injury
to his head as a result of a fall from a 5-ton truck.  However, there is no
evidence and the applicant has not provided sufficient evidence showing
that his acts of indiscipline were as a result of the head injury.
3.  Evidence shows that the applicant was discharged under the provisions
of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial
which is a voluntary discharge.  Additionally, discharge under the
provisions of Chapter 10 of Army Regulation 635-200 requires an admission
of guilt to the offenses charged and usually results in a discharge under
other than honorable conditions.

4.  Although the complete facts and circumstances are not available for
review, there is no evidence in the available records which indicate that
the applicant's rights were violated and the applicant authenticated his
separation document at the time of his discharge.  Therefore, regularity
must be presumed in this case.

5.  The applicant's records show that he had stole a purse and had one
period of lost time due to being AWOL.  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.  This
misconduct also renders his service unsatisfactory. Therefore, he is not
entitled to either a general discharge or an honorable discharge.

6.  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 this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 December 1985.  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

_CG___  __JBG____  _PMT___  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.




                                     _Curtis Greenway___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016189                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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