RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 NOVEMBER 2006
      DOCKET NUMBER:  AR20060003680


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |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 discharge be changed to a medical
discharge.

2.  The applicant states, in effect, that he was discharged from the
military in 1980 after being diagnosed with paranoid schizophrenia.  He
argues the fact that receiving disability benefits from Social Security
Administration should qualify him for a medical discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a letter from Social Security
Administration.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 April 1980.  The application submitted in this case is
dated            6 March 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 record shows he enlisted in the United States Army
National Guard on 21 June 1976 and reenlisted on 2 April 1977 for 6 years.
He was discharged on 2 April 1980 with an Under Other Than Honorable
Conditions Discharge.

4.  Orders dated 16 May 1979 show that the applicant was involuntarily
ordered to active duty for a period of 20 months and 6 days.  His report
date was listed as 5 July 1979.  The order stated that if the applicant
failed to report for active duty as directed, he would be liable for
disciplinary action under the Uniform Code of Military Justice.



5.  On 15 January 1980, charges were preferred against the applicant for
being absent without leave from 5 July 1979 to 4 January 1980.  The
applicant requested a discharge for the good of the service.

6.  On 15 January 1980, the applicant underwent a separation physical
examination.  On the physical examination form, the applicant stated that
he was unemployed and for the past two years was receiving social security
benefits for severe disabilities.  The physician noted the applicant’s
disabilities, which did not include paranoid schizophrenia, signed the form
with the note that “Physical Incomplete, Waiver Signed, See Attached.”  The
attached affidavit shows that the applicant signed this form indicating
that he was fully advised by the adjutant of the rights and advantages of
remaining on active duty for the purpose of continuing medical care or
hospitalization and, if eligible, subsequent separation or retirement for
physical disability.  He understood that if he elected to be discharged or
released from active duty as scheduled, he would not after such discharge
or release from active duty, be eligible for separation or retirement for
physical disability.

7.  On 18 January 1980 the applicant underwent a mental status evaluation
that found him to be fully oriented and alert.  His behavior and thought
content were listed as normal.  His thinking process was clear and his
memory was good.  The medical personnel noted no significant mental illness
and found that the applicant was mental responsible, able to distinguish
right from wrong, and had the mental capacity to understand and participate
in board proceedings.  Additionally, the medical personnel concluded that
the applicant met the medical fitness standards for retention, separation,
and/or retirement.

8.  The applicant’s commander stated on 20 February 1980 that there did not
appear to be any reasonable ground to believe that the applicant was at the
time of his misconduct, mentally defective, deranged, or abnormal.

9.  The applicant’s request for discharge in lieu of court-martial was
approved by the appropriate authority.

10.  The applicant provided a letter from the Social Security
Administration that verified his disability benefits started in October
1978.





11.  Army Regulation 635-40, (Physical Evaluation for Retention,
Retirement, or Separation) 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 interrupted and they can
no longer continue to reasonably perform because of a physical disability
incurred or aggravated in service.  When a Soldier 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 Soldier is scheduled for separation, is an indication that the
individual is fit.

12.  Army Regulation 635-40, paragraph 4-3a, states that an enlisted
soldier may not be referred for, or continue, physical 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.  There is no evidence, and the applicant has not provided any, which
shows that he was diagnosed with paranoid schizophrenia at the time of his
separation. The applicant’s mental evaluation, conducted by competent
medical authority, determined that the applicant was then mentally fit for
retention or appropriate separation.

2.  Although the applicant stated that he was unemployed and receiving
social security benefits for severe disabilities on his separation physical
examination, he signed an affidavit declining medical care and subsequent
separation or retirement for physical disability.  The elimination
proceedings verified that the applicant was afforded due process and in
view of that, he was separated from active duty for reasons other than
physical disability.

3.  In addition, the applicant was prohibited from being considered for a
medical discharge since he was pending an Under Other Than Honorable
Discharge.

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 2 April 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 April 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

___JM  __  __SP ___  ___DP __  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.




                                  ______John Meixell__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003680                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|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.                      |                                        |


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