RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 August 2006
      DOCKET NUMBER:   AR20060001197


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 honorable discharge by reason of physical disability.

2.  The applicant states that his undesirable discharge should be changed
to an honorable discharge by reason of physical disability because he hurt
his back in the arms room moving rifle racks around and was given a
permanent physical profile.  He goes on to state that he could not stand
straight for weeks and was told to sweep and mop the floors and clean the
bathrooms.  When he could not do it he was told that he would be locked up.
 He further states that he went home over the weekend and was late in
returning; however, when he did arrive, his paperwork for an undesirable
discharge was waiting for him to sign.  He continues by stating that he was
in pain and was taking Valium and was concerned that he would be locked up,
so he signed the discharge and went home.  Since his discharge he has had
three back operations, is disabled and now needs help.

3.  The applicant provides copies of his reports of separation (DD Form
214), a copy of his permanent physical profile for chronic low back pain,
copies of clinical records regarding his treatment for lower back pain and
his separation medical/physical examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 August 1975.  The application submitted in this case is
dated 6 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 initially enlisted on 27 November 1970 for a period of 3
years.  He completed his training as a supply clerk and served briefly at
Fort Monmouth, New Jersey and Fort Eustis, Virginia before being
transferred to Germany on 14 August 1972.

4.  On 19 July 1973, he was convicted by a special court-martial of
disobeying a lawful order from a superior commissioned officer.  He was
sentenced to a forfeiture of pay for 3 months.

 5.  He continued to serve until he was honorably discharged in the pay
grade of E-4 on 21 November 1973 as an early overseas returnee.  He had
served 2 years, 11 months and 25 days of total active service.

6.  On 4 February 1975, he again enlisted in the Regular Army for a period
of 3 years and assignment to Fort Bragg, North Carolina.  He was assigned
as a supply clerk to the 72nd Aviation Company.

7.  Although the record of nonjudicial punishment (DA Form 2627) is not
present in the available records, there are orders present which indicate
that nonjudicial punishment was imposed against him on 24 February 1975 for
misconduct and his punishment consisted of a forfeiture of pay.

8.  The applicant went absent without leave (AWOL) from 5 June to 9 June
1975; however, the record is silent as to any punishment imposed for that
offense.

9.  On 8 July 1975, he was issued a permanent physical profile for chronic
low back pain with restricted duty.

10.  On 17 July 1975, he was seen at the troop medical clinic to be
evaluated for an administrative discharge.  The examining physician
indicates in the clinical notes that the commander states that he was doing
good work until 2 months prior, when his performance fell and he became a
discipline problem.  The physician indicates that the applicant was facing
court-martial charges for insubordination, resisting arrest and AWOL.  The
applicant informed the physician that he came back into the Army under
pressure from his wife to earn more money.  He indicated that he was
nervous, that he experienced fits of rage, that he felt like a walking bomb
who would injure someone for a slight provocation and that he wanted out of
the Army.  The physician noted that the applicant attempted to convince the
medics that he should be discharged because of his back problems.

11.  The psychiatric consult indicates that there was no evidence of
psychosis, that he did not qualify for a medical discharge nor would his
symptoms exonerate his behavior.

12.  He underwent a medical/physical examination on 27 July 1975.  The
applicant indicated that his health was good and the examining physician
made note that the applicant suffered from chronic low back pain.  The
applicant was cleared for separation.

13.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214), which shows that he
was discharged at Fort Bragg on 25 August 1975, under the provisions of
Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He
had served 6 months and 18 days of active service during his current
enlistment and had 5 days of lost time due to being absent without leave.


14.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 An undesirable discharge is normally considered appropriate.  There have
never been any provisions for an automatic upgrade of such discharges.

16.  Army Regulation 635-40, in pertinent part, provides that when a member
is being separated by reasons other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring prior to or coincident with separation,
rendered the member unfit.


DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s voluntary request for separation under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service, to avoid
trial by court-martial, was administratively correct and in conformance
with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant’s contentions and supporting documents have been noted;
however, they are not sufficiently mitigating to warrant relief when
compared to his overall undistinguished record of service and the fact that
the evidence suggests that he requested the discharge in lieu of trial by
court-martial.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 August 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 August 1978.  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

____MP _  ____MF _  ___GP __  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.




                                  ____Margaret Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001197                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1975/08/25                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.144.7000/689/A70.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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