RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060004566


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |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 that his discharge be corrected to an honorable
discharge for medical reasons.

2.  The applicant states, in effect, that at his last duty station he was
assigned as the commanding officer’s driver because he could not work at
the motor pool.

3.  The applicant provides a letter from a minister and a resume.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 30 January 1984.  The application submitted in
this case is dated 7 February 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 entered active duty 8 March 1978, completed training as a
light wheeled vehicle and power generator operator/mechanic and progressed
normally to specialist four, pay grade E4 on 19 September 1979.  On 19
March 1981 he was awarded the Good Conduct Medal.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice on 16 April 1981 for willful disobedience of a
noncommissioned officer in a work related incident.  The punishment
included a suspended reduction to pay grade E3.

5.  On 6 August 1981 the applicant was given a P2/1/1/1/1/1 profile that
precluded him from shaving because of ingrown hairs on his face and neck.

6.  The applicant reenlisted for 3 years on 10 September 1981.  He received
NJP on 4 November 1981 for assaulting his spouse.  The punishment consisted
of reduction to pay grade E3, restriction and extra duty.  He was advanced
to pay grade E4 again on 1 January 1983.
7.  On 23 May 1983 the applicant was placed on the weight control program
and a body fat content and medical evaluation were requested.  His
overweight condition was determined not to be the result of a medical
condition.

8.  On 19 January 1984 the applicant was notified of recommended
elimination for unsatisfactory performance.  On 20 January 1984 he
consulted with counsel and was informed of his rights and the potential
consequences of the discharge.  He acknowledged that he did not have 6
years or more of total service, and waived his right to submit documents or
to make a statement in his own behalf.

9.  The separation authority approved the recommendation waived any
remaining rehabilitation requirements and directed that a general discharge
be issued.  On  30 January 1984 the applicant was separated with a general
discharge due to unsatisfactory performance under the provisions of Army
Regulation 635-200, chapter 13.  He had 5 years, 10 months, and 23 days
creditable service and no lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory Soldier.

11.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when
a member is being separated by reason 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 immediately prior to or
coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  The type of discharge
directed and the reasons therefore were appropriate considering all the
facts of the case.

2.  There is no available evidence to indicate that the applicant was
physically unable to perform his duty or had any disqualifying medical
condition.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 January 1987.  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

__JBG __  __EEM__  _SWF___  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 B. Gunlicks ____
                                            CHAIRPERSON


                                  INDEX

|CASE ID                 |AR20060004599                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |A49.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A49.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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