RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050016815


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Eric Andersen                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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, disability retirement or separation.
 He requests that his rank of E-4 be restored and that his Reentry (RE)
Code be changed from RE-3 to RE-1.  He also requests compensation in the
amount of 1.2 million dollars and in subsequent correspondence to the Board
increased the amount of compensation he was seeking.

2.  The applicant states he was released from active duty with serious
injuries which included frostbite to both feet, a lower back injury,
bilateral knee injuries, bronchitis, and sinusitis.  He states that his
physician knew about all of his injuries and his ailments but released him
back to civilian life without a medical discharge.  He maintains the
decision was racially motivated.

3.  He states when he reported to active duty he was in perfect health and
that the Army failed to live up to its part of his contract by ensuring if
he were injured in service to his country he would receive proper medical
care.  He states he was never advised of benefits he could receive as a
disabled Soldier.

4.  The applicant notes that he is currently receiving disability
compensation from the Department of Veterans Affairs for “Fungus of both
Feet.”

5.  The applicant maintains his rank should be restored and his RE Code
changed because he had to deal with horrible racism and discrimination
while in the Army.  He states this was cruel and harsh punishment for
missing a 5 minute police call.

6.  The applicant states that he was a good Soldier and knew his job, kept
his game “tight and strike” and spit polished for almost his entire 4 year
enlistment with no derogatory information whatsoever.

7.  He states he should be compensated monetarily because he was denied his
career in the United States Army, for having to deal with 4 years of
hostile racism, and for sabotaging his right to reenlist back into the
military.

8.  The applicant provides extracts from his service medical records and
copies of medical treatment records subsequent to his military service.





CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 August 1980.  The application submitted in this case
is dated
5 November 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.  Records available to the Board indicate the applicant enlisted in the
Regular Army for a period of 4 years on 24 August 1976.  He successfully
completed training and in January 1977 he was assigned to Fort Riley,
Kansas.  By March 1978 he had been promoted to pay grade E-4.

4.  Commencing in April 1978, however, the applicant began accumulating
counseling statements for a variety of performance and conduct failures
including failing to attend formations, his poor attitude and job
performance, leaving his place of duty, and disobeying an order among
others.  He also was cited seven times in the Military Police blotter for
issues relating to speeding, failing to appear in civil court, defective
equipment on his vehicle, and not having his license in his possession.

5.  As a result of his multiple counseling statements and blotter entries,
on
14 May 1979 the applicant’s commander initiated a local bar to reenlistment
against the applicant.  The applicant indicated that he would submit a
statement in rebuttal to the proposed bar to reenlistment but failed to do
so and ultimately the bar was approved.

6.  In August 1979 the applicant was punished under Article 15 of the
Uniform Code of Military Justice for failing to go to his appointed place
of duty on several occasions.  His punishment included forfeiture of pay
which was suspended.

7.  In January 1980 he was punished under Article 15 of the Uniform Code of
Military Justice for again failing to go to his appointed place of duty.
His punishment now included reduction to pay grade E-3, restriction, and
extra duty.

8.  In February 1980 he was punished a third time under Article 15 of the
Uniform Code of Military Justice after breaking restriction.

9.  In March 1980 the applicant’s local bar to reenlistment was reviewed
and his commander recommended that the bar remain in effect as a result of
the applicant’s continued misconduct subsequent to the original imposition
of the bar to reenlistment.  The bar to reenlistment remained in effect and
on 22 August 1980 the applicant was released from active duty upon
completion of his enlistment contract.  He received a RE Code of 3 and was
transferred to the United State Army Control Group for the duration of his
statutory service obligation.

10.  In September 1981 the applicant was transferred from the United States
Army Reserve Control Group to a Troop Program Unit and in November 1982 he
reenlisted in the United States Army Reserve for a period of 6 years.
However, in May 1983 he was discharged for unsatisfactory performance after
failing to attend schedule unit drills.

11.  Service medical records, which were provided by the applicant,
indicate that he was treated for a variety of ailments while on active duty
between 1977 and 1980 including pink eye, sinus congestion, chronic
bilateral knee pain, recurrent low back pain, and various feet problems.
The records he provided note only two temporary physical profiles, both
dating from 1978, the last one expiring on
29 June 1978.  In December 1979 he reported sustaining a cold weather
injury in March 1978 which contributed to pain in his feet.

12.  Only the front page of the applicant’s Report of Medical History,
completed as part of his separation physical examination in July 1980, was
provided to the Board.  On that form the applicant noted that he suffered
from eye trouble, sinusitis, hay fever, lameness, recurrent back pain, tick
or locked knee, foot trouble, and depression and excessive worry.  The
physician’s assessment of the applicant’s medical condition at the time of
separation was not included with documents available to the Board.  There
is no indication the applicant was ever found unfit for continued military
service.

13.  Subsequent to the applicant’s separation from active duty in 1980 he
continued to receive medical treatment for his various medical conditions.
By September 2000, 20 years after his release from active duty, he was
awarded a 30 percent disability rating by the Department of Veterans
Affairs for bilateral fungus infection on his feet.

14.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a Solider is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

15.  Title 38, United States Code, Sections 1110 and 1131, permits the
Department of Veterans Affairs to award compensation for a medical
condition which was incurred in or aggravated by active military service.
An individual's medical condition, although not considered medically
unfitting for military service at the time of processing for separation,
discharge or retirement, may be sufficient to qualify the individual for VA
benefits based on an evaluation by that agency.

16.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE Codes, based on their
service records or the reason for discharge.  Army Regulation 601-210, then
in effect, covered eligibility criteria, policies, and procedures for
enlistment and processing into the Regular Army (RA) and the United States
Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility
for prior service applicants for enlistment.  That chapter included a list
of armed forces RE Codes, including RA RE Codes.  RE-3 applies to those
individuals who were not considered fully qualified for reenlistment or
continuous service at the time of separation, including those separated
with a local bar to reenlistment.

17.  Army Regulation 27-20, paragraph 2-39b, states that a member of the
Armed Forces' claim arising incident to service is not payable under any
chapter, however, a claim for property loss or damage may be payable under
Chapter 11 or, if not, under Chapters 3 or 6 of this regulation.
Derivative claims and claims for indemnity are also excluded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that because he had a variety of medical
conditions which were treated while he was in the military he should have
been medically retired or separated is without foundation.  There is no
evidence, and the applicant has not provided any, which confirms that he
was physically unfit to perform his duties at the time of his separation.

2.  There is no evidence, and the applicant has not provided any, that he
was physically unfit at the time of his separation from active duty in 1980
or that he had any disabling condition at the time which warranted referral
for disability processing.  Therefore, there is no basis for physical
disability retirement.

3.  The fact that he was awarded disability compensation from the
Department of Veterans Affairs (VA) 20 years after his separation from
active duty is not evidence that he was unfit at the time of his release in
1980 or that he should have been medically separated or retired.  The VA,
operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA does not compel the
Army to modify its reason or authority for separation.

4.  The applicant was separated from active duty with a local bar to
reenlistment in place.  As such, he was not eligible to reenlist, and
received an RE Code of 3. The RE Code was proper, based on the
circumstances of his separation.  The applicant’s inability to return to
active duty after his separation does not serve as a basis to change a
correctly assigned RE Code.

5.  Contrary to the applicant’s argument, he began exhibiting a pattern of
minor misconduct in 1978, not even 2 years after his entry on active duty.
That pattern of misconduct served as the basis for his local bar to
reenlistment.  The evidence of record indicates that the applicant was
punished once under Article 15 of the Uniform Code of Military Justice
(UCMJ) for several counts of failing to be at his appointed place of duty
and it was only after he had been punished a second time that his command
elected to reduce him in grade.  Such evidence suggests that the
applicant’s command was attempting to work with the applicant to ensure he
had a successful career rather than an exhibition of racism and only when
he did not avail himself to constructive means of improvement the command
resorted to UCMJ actions and left his local bar to reenlistment in place.

6.  The applicant has not shown that “compensation” of any kind is
warranted as a result of his military.  The evidence available to the Board
suggests the applicant’s inability to continue his military career was of
his own doing as is further confirmed by his discharge from the United
States Army Reserve for unsatisfactory performance after he was permitted
to reenlist in that component.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 August 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 August 1983.  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

___EA __  ___RL___  __RM ___  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.




                                  ______Eric Andersen________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016815                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|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.       |108.00                                  |
|2.                      |110.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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