RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 OCTOBER 2006
      DOCKET NUMBER:  AR20060000351


      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. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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 separation or retirement.

2.  The applicant states, in effect, that he was barred from reenlisting
when in fact he had been referred to mental health officials.  He notes
that after he was given a separation physical examination, two United
States Army physicians rejected him from reenlisting because of mental
health reasons.

3.  The applicant provides documents associated with his bar to
reenlistment action, a copy of his separation document, a copy of the
orders discharging him from the United States Army Reserve, a listing of
military reenlistment eligibility codes from the 1st Marine Division
Association, and a copy of his separation physical examination.

4.  The applicant also submits portions of a 1997 "XO HANDBOOK" from the
25th Infantry Division in Hawaii.  The portions include information
associated with the Inspector General Activities.  The applicant
highlighted several portions of the handbook.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 April 1981.  The application submitted in this case is
dated
3 January 2006.

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 records are not available to the Board.  This
case is being considered using reconstructed records, which consist solely
of documents provided by the applicant.

4.  The applicant's separation document indicates he was a member of the
United States Army Reserve when he entered active duty on 10 July 1979.

5.  On 23 December 1980 the applicant's unit commander initiated actions to
bar the applicant from reenlisting.  The commander noted the applicant's
lack of cooperation and apathetic attitude were detrimental to the morale
of his peers and that he required constant supervision and verification of
the work he performed.  The applicant acknowledged receipt of the action,
acknowledged that he had been counseled and advised regarding the basis for
the action and elected not to submit a statement in his own behalf.  The
bar to reenlistment was ultimately approved.

6.  On 13 February 1981 the applicant underwent a separation physical
examination.  The applicant was found medically qualified for separation
with a physical profile of 1-1-1-1-1-1 indicating he had no medical
deficiencies.  As part of the applicant's application to the Board, he
circled a handwritten number "22" contained on the front of his
examination.  The number was written in the dental portion of the
examination.  The applicant then implied, by highlighting entry number 22
on that portion of the examination form intended to enable the individual
to identify various issues, that the handwritten number "22" referred to
item 22 which asked the question "have you ever been rejected for military
service because of physical, mental, or other reason?"  The entry is
actually marked "no" and there was no additional entries associated with
that portion of the examination.

7.  On 14 April 1981 the applicant was released from active duty with an
honorable characterization of service at the completion of his enlistment
contract. He received a separation code of "LBK" which identified him as
having a bar to reenlistment in effect at the time of his separation.

8.  On 21 December 1983, at the completion of the applicant's statutory
service obligation, he was honorably discharged from the United States Army
Reserve.

9.  The Reenlistment Eligibility Code listing, the applicant submitted with
his application, reflects three digit codes with their associated
separation basis.  The copy of the "XO HANDBOOK", also provided by the
applicant in support of his application, has various statements
highlighted.  The statements which he highlighted contain references to
Army Regulation 635-200, the general regulation governing enlisted
separation actions, but none of the highlighted paragraphs apply to the
applicant's situation.




10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the policies and provision for the separation of
Soldiers because of disability.  It notes that the mere presence of
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 Soldier reasonably may be expected to perform because of his or
her office, grade, and rank of rating.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, which
shows that he had any medical conditions that were unfitting enough to
warrant referral for disability processing.  In the absence of such
evidence, there is no basis to grant his request for disability retirement.

2.  The applicant has also not provided any evidence which show that his
bar to reenlistment was invalid or unjust.  There is no evidence that the
applicant was ever referred for mental health counseling, or that mental
health counseling was necessary.

3.  Contrary to the applicant's contention he was not denied reenlistment
because of any medical issues.  His attempt to imply such was the case,
based on entries on his separation physical examination, is without
foundation and not supported by any evidence available to the Board or
provided by the applicant.  It is likely that the number "22" handwritten
on the front of his separation physical examination referred to a dental
issue and had nothing to do with item 22 on the second form.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1981, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 April 1984.  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

__JG____  __MF___  __SF  ___  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 Gunlicks________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000351                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061005                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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