RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060006355


      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:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Ms. Laverne Douglas               |     |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 or changed to a medical discharge.

2.  The applicant states, in effect, that he was in the Army from 1968 to
1971 and that he began using medication in Vietnam prescribed by a
psychiatrist.  He contends that he asked for treatment and none was given.
He also states that he is suffering from mental illness.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 August 1971.  The application submitted in this case is
dated 21 April 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 on 29 June 1968 for a period of 3 years.  He was
awarded military occupational specialty 64A (light vehicle driver).

4.  On 6 January 1970, nonjudicial punishment was imposed against the
applicant for violating a lawful regulation and possessing marijuana.  His
punishment consisted of a reduction to E-2 and a forfeiture of pay.

5.  In July 1970, nonjudicial punishment was imposed against the applicant
for violating two regulations.  His punishment consisted of extra duty and
restriction.

6.  Records show the applicant was arrested by civil authorities on 24
August 1970 and charged with selling dangerous drugs.  He was held in
civilian confinement from 16 September 1970 through 11 May 1971.  He was
convicted and sentenced to serve 3 years in prison.  His sentence was
suspended for 3 years.

7.  On 28 June 1971, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-3 and a forfeiture of pay (suspended).

8.  On 9 July 1971, charges were preferred against the applicant for
possessing marijuana and possessing an undetermined amount of a habit
forming narcotic drug (no other details available).  Trial by special court-
martial was recommended.

9.  On 28 July 1971, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
Army Regulation 635-200, chapter 10.  He indicated in his request that he
understood that he could be discharged under other than honorable
conditions and furnished an Undesirable Discharge Certificate, that he
might be deprived of many or all Army benefits, that he might be ineligible
for many or all benefits administered by the Veterans Administration and
that he might be deprived of his rights and benefits as a veteran under
both Federal and State law.  He also acknowledged that he might encounter
substantial prejudice in civilian life because of an undesirable discharge.
 He elected not to submit a statement in his own behalf.

10.  On 4 August 1971, the applicant underwent a separation physical
examination and was found qualified for separation with a physical profile
of 111111.  His Standard Form 88 (Report of Medical Examination), dated 4
August 1971, states that there were no disqualifying mental or physical
defects sufficient to warrant disposition through medical channels.  Item 8
(Statement of Examinee’s Present Health and Medications Currently Used) on
his Standard Form 93 (Report of Medical History), dated 4 August 1971, is
blank.

11.  On 4 August 1971, the applicant underwent a Mental Status Evaluation
and he was found mentally responsible and no significant mental illness was
noted.

12.  On 9 August 1971, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

13.  Accordingly, the applicant was discharged with an undesirable
discharge on 18 August 1971 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service.  He had served 2 years, 6
months, and 1 day of total active service with 237 days of lost time due to
civilian confinement.

14.  There is no evidence of record which shows the applicant was diagnosed
with any mental or medical condition prior to his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that 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 the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  At the time, an undesirable
discharge was normally considered appropriate.

16.  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.

17.  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.

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.

19.  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 record of service included three nonjudicial
punishments and 237 days of lost time.  He also committed a serious civil
offense while in the Army.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant an honorable discharge
or general discharge.

2.  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.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  There is no evidence of record to show the applicant was ever medically
unfit to perform his duties or that he had any type of medical or mental
condition.  In addition, since he separated under a regulatory provision
that authorized a characterization of discharge of under other than
honorable conditions (i.e. undesirable discharge), it does not appear he
was eligible for physical disability processing.  Therefore, there is no
basis for a medical discharge.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 18 August 1971; therefore, the time for the
applicant to file a request for correction of any injustice expired on 17
August 1974.  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

TP_____  ___PF___  __LD____  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.




                                  ____Thomas Pagan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006355                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710818                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |108.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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