RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060002255


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Jerome Pionk                  |     |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 general discharge be
upgraded to honorable or changed to a medical discharge.

2.  The applicant states, in effect, that his leg injury and other medical
conditions he incurred on active duty in October 2001 limited his duty
performance.  He contends that he requested a medical board.  In a DD Form
293 (Application for the Review of Discharge or Dismissal from the Armed
Forces of the United States), dated 15 March 2003, the applicant stated
that his discharge was inequitable because he was forced to waive the
separation board and accept the discharge.  He stated that his discharge
was improper due to fabricated disrespect and fabricated misconduct.  He
further stated that no misconduct had ever occurred and that he was not
afforded due process.

3.  The applicant provides a DD Form 293, dated 15 March 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 March 2003.  The application submitted in this case is dated
25 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 enlisted in the Regular Army on 18 January 1984, served
as a single channel radio operator, and was released from active duty on 16
January 1987.  He was ordered to active duty on 27 February 1988 for
training.  On
30 November 1988, he was released from active duty.  The applicant was
ordered to active duty for training on 7 October 1993 while serving in the
Air Force National Guard and he was released from active duty on 21 May
1994.  The applicant enlisted in the Regular Army on 15 June 2001.

4.  Between 17 October 2001 and 30 October 2002, the applicant was issued
six temporary profiles for various medical conditions which included left
leg cellulitis, abdominal pain, and left leg pain.  He was issued a
permanent profile on
15 January 2003 for chronic left lower leg pain and arm pain associated
with rolled up sleeves.

5.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, his DD Form 214
(Certificate of Release or Discharge from Active Duty) for the period
ending 12 March 2003 shows he was discharged with a general discharge on 12
March 2003 under the provisions of Army Regulation 635-200, paragraph 14-
12c, for misconduct (commission of a serious offense).  He had served a
total of 4 years, 4 months, and 18 days of creditable active service.

6.  On 19 December 2003, the Army Discharge Review Board denied the
applicant's request for an honorable discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a Soldier discharged under this chapter.

8.  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.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-3, states that an enlisted Soldier may not be referred for, or
continue, disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions on his DD Form 293 were noted.  However, in
the absence of evidence to the contrary, it must be presumed that the
applicant’s separation was administratively correct and in conformance with
applicable regulations.  Without having the discharge packet to consider,
it is presumed his characterization of service was commensurate with his
overall record of service.  As a result, there is no basis for granting the
applicant's request for an honorable discharge.

2.  Although the applicant was issued numerous profiles for several medical
conditions, there is no evidence of record to show he was ever medically
unfit to perform his duties.  In addition, since he separated under a
regulatory provision that authorized a characterization of discharge of
under other than honorable conditions, it does not appear he was eligible
for physical disability processing.  Therefore, there is no basis for a
medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LS______  _JM_____  _JP_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



                                  __Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002255                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20030312                                |
|DISCHARGE AUTHORITY     |AR 635-200 Paragraph 14-12c             |
|DISCHARGE REASON        |Misconduct (commission of a serious     |
|                        |offense)                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |108.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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