RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060003876


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 discharge be changed to
show he was separated under medical conditions.

2.  The applicant states, in effect, that he was discharged based on
misconduct; however, reviewing his medical records, he should have been
medically discharged.

3.  The applicant provides a copy of Standard Form 93 (Report of Medical
History), DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), Standard
Form 88 (Report of Medical Examination), DD Form 214 (Certificate of
Release or Discharge from Active Duty), Standard Form 513 (Consultation
Sheet), and four-pages of medical records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 April 1981, the date of his discharge from active duty.  The
application submitted in this case is dated 2 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 enlisted in the Army on 27 June 1979 for a period of 4
years,  after completion of basic and advanced individual training, he was
awarded military occupational specialty 19D (Cavalry Scout).  The applicant
served in Germany during the period 17 December 1979 through 12 December
1981.







4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following five separate occasions for the offenses indicated:  on 16
October 1970, for assaulting a fellow Soldier and for being drunk and
disorderly on two separate occasions; on 6 June 1980, for disobeying an
lawful order and without authority leaving his appointed place of duty; on
10 September 1980, for failure to go at the time prescribed to his
appointed place of duty and disobeying an lawful order; on 2 January 1981,
for without authority leaving his appointed place of duty and for failure
to go at the time prescribed to his appointed place of duty; and on
20 February 1981, for failure to obey an lawful order.

5.  The applicant's records show he received 21 informal counseling
sessions during the period 21 December 1979 through 19 February 1981.  The
applicant was counseled regarding his poor attitude, disobeying lawful
orders, poor performance, being disrespectful, and several other acts of
misconduct.

6.  DA Form 3647-1 (Inpatient Treatment Record Cover Sheet) dated
17 December 1981, contains an entry which shows that on 27 November 1980,
the applicant sustained an injury "when he punched out several windows
while intoxicated."

7.  The applicant's records contain a final medical report, dated 17
December 1980.  This report shows the applicant was treated on 28 November
1980 for a laceration to his left forearm.  The report further shows that
the injury occurred when the applicant broke several windows with his fist
while intoxicated.  The report also shows that on 4 October 1980, the
applicant sustained a traumatic injury from a bicycle accident.

8.  Standard Form 93 (Report of Medical History), dated 6 January 1981,
shows that the applicant's was diagnosed with depression, anxiety,
nervousness, and insomnia.

9.  Standard Form 88 (Report of Medical Examination), dated 6 January 1981,
shows the applicant underwent a medical examination for the purpose of
separation.  The examining medical officer indicated that the applicant
recently underwent a repair of his left inguinal hernia, a left orchiectomy
[An excision of one or both testes], and a tendon repair to his left wrist.
 Item 76A (Physical Profile) of this form gave a physical rating of 111111.
 The examining medical officer indicated the applicant was qualified for
separation.


10.  On 7 January 1981, the applicant underwent a psychiatric evaluation at
the Illesheim Community Counseling Center, APO New York.  The examining
medical officer stated that the applicant showed no evidence of a
psychiatric disorder requiring medical disposition and that he appeared to
have sufficient judgment to understand and participate in any
administrative action.  The examining medical officer psychiatrically
cleared the applicant for any administrative action.

11.  On 20 February 1981, the applicant was notified that he was being
recommended for elimination based on his misconduct due to frequent
incidents of a discreditable nature with military authorities and
established pattern of misconduct indicative of a total disregard for law
and procedures.

12.  The applicant's records contain a Respondent's Election of Rights,
dated 20 February 1981.  This form shows the applicant acknowledged that he
was advised by counsel of the basis for the separation under the provisions
of chapter 14 of Army Regulation 635-200 (Personnel Separations Enlisted
Personnel).  The applicant elected to be considered by a board of officers
and to personally appear before the board of officers.  The applicant also
acknowledged that he understood he may expect to encounter substantial
prejudice in civilian life and if issued a discharge under other than
honorable conditions, he may be ineligible for many or all benefits as a
veteran under both Federal and State Laws.

13.  On 16 March 1981, the applicant submitted another Respondent's
Election of Rights where he acknowledged that he was advised of the basis
for separation under the provisions of chapter 14 of Army Regulation 635-
200, elected to waive consideration of his case by a board of officers,
waived a personal appearance, and elected to not submit any statements on
his own behalf.

14.  On 27 March 1981, the general in command of Headquarters, 1st Armored
Division, APO NY, approved the applicant's discharge under the provisions
of paragraph 14-33b(1) of Army Regulation 635-200 for frequent incidents of
a discreditable nature with civil or military authorities.

15.  The applicant's DD Form 214 shows he was separated on 8 April 1981,
under the provisions of paragraph 14-33b of Army Regulation 635-200, by
reason of misconduct frequent incidents of a discreditable nature with
civil or military authorities and issued an undesirable discharge with a
character of service under conditions other than honorable.  He had served
1 year, 9 months, and 12 days of net active Federal service.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for
upgrade of his discharge.  On 31 March 1983, the ADRB considered his case
and voted unanimously to deny his request.  The ADRB granted the applicant
a personal appearance which was held on 8 December 1992.  On 16 March 1993,
the ADRB notified the applicant that the Board voted unanimously to deny
his second request.

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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.  However, the separation authority may direct a general
discharge if such is merited by the Soldier's overall record.  Only a
general court-martial convening authority may approve an honorable
discharge or delegate approval authority for an honorable discharge under
this provision of regulation.

18.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  Numerical designators "2" and "3" indicate that an individual
has a medical condition or physical defect which requires certain
restrictions in assignment within which the individual is physically
capable of performing military duty.  The individual should receive
assignments commensurate with his or her functional capacity.  Numerical
designator "4" indicates that an individual has one or more medical
conditions or physical defects of such severity that performance of
military duty must be drastically limited.  The numerical designator "4"
does not necessarily mean that the individual is unfit because of physical
disability as defined in Army Regulation 635-40.

19.  Army Regulation 635-200, paragraph 3-7a, 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.

20.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be changed to
show he was separated under medical reasons.

2.  The applicant's medical records show he was treated for injuries during
his term of service.  However, these injuries did not prevent him from
performing his duties.  The separating medical examination shows the
applicant was rated at "111111" which indicated he maintained a high level
of fitness and was medically fit for any military assignment.

3.  A psychiatric evaluation showed there was no evidence that the
applicant had a psychiatric disorder requiring medical disposition and that
he appeared to have sufficient judgment to understand and participate in
any administrative action.  The examining medical officer psychiatrically
cleared the applicant for any administrative action.

4.  Based on the facts above, the applicant did not provide sufficient
evidence that shows he was medically unqualified to perform his military
duties or that his medical condition was the basis of his misconduct.
Therefore, there is no basis to grant the applicant's request.





5.  Evidence shows the applicant's administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

6.  Evidence shows the applicant has an extensive record of indiscipline
consisting of five nonjudicial punishments and 21 counseling sessions
regarding his disregard of authority, his poor attitude, disobeying lawful
orders, poor performance, being disrespectful, and several other acts of
misconduct.

7.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Additionally, his service is deemed unsatisfactory in
view of his bad conduct.  Therefore, he is not entitled to either a general
or an honorable discharge.

8.  The type of discharge directed and the reason for discharge was
appropriate considering all of the facts of the case.

9.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 March 1993.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 15 March 1996.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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

_BPI___  _RDG ___  _EEM____  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.




                                     __Bernard P. Ingold _
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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