RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060008640


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |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 a medical discharge.

2.  The applicant states, in effect, that he should have received a medical
discharge because of major back problems that he sustained in basic
training and during a training exercise on active duty.  He also states
that his squad leader felt that he was not following orders and requested
that he be discharged. He further states that he needs medical treatment at
the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a DVA application for health
benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 February 1981.  The application submitted in this case is
dated 20 May 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 21 May 1979 for a period of 3 years.  He
successfully completed One Station Unit Training in military occupational
specialty 11B (infantryman).

4.  On 29 May 1980, nonjudicial punishment was imposed against the
applicant for two specifications of being absent without leave (AWOL) for a
total of 7 and 1/2 hours and two specifications of failure to repair.  His
punishment consisted of a reduction to E-2 (suspended) and a forfeiture of
pay.  On 30 June 1980, the suspended portion of the punishment was vacated.


5.  On 4 August 1980, nonjudicial punishment was imposed against the
applicant for being AWOL from 17 July 1980 to 31 July 1980.  His punishment
consisted of a reduction to E-1 (suspended) and 30 days in a correctional
custody facility.

6.  On 20 November 1980, contrary to his pleas, the applicant was convicted
by a summary court-martial of leaving his appointed place of duty without
authority and disobeying a lawful order.  He was sentenced to be restricted
for 28 days and to forfeit $50 pay per month for 1 month.  On 20 November
1980, the convening authority approved the sentence.

7.  A bar to reenlistment was imposed against the applicant on 1 December
1980.

8.  On 3 December 1980, the applicant signed a Statement of Option which
states, "I understand that I am not required to undergo a medical
examination for separation (or retirement) from active duty.  If I elect
not to undergo a separation examination, I also understand that my medical
records will be reviewed by a physician at the appropriate medical
treatment facility; and if the review indicates that an examination should
be accomplished, I will be scheduled for examination based on the results
of the review.  I do not desire a separation medical examination."  His
medical records were reviewed by competent medical authorities and it was
determined that a medical examination for separation was not required.

9.  On 15 December 1980, the applicant's unit commander initiated action to
discharge him under the provisions of Army Regulation 635-200, paragraph
14-33 for misconduct due to frequent involvement in incidents of a
discreditable nature with civil or military authorities.  He cited that the
applicant was untrainable, that he would not respond to rehabilitative
efforts, and that he had a history of misconduct, civilian confinement,
driving while intoxicated, and failure to pay just debts.

10.  On 24 December 1980, after consulting with counsel, the applicant
waived consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.  He
also acknowledged that he might expect to encounter substantial prejudice
in civilian life if a general discharge under honorable conditions were
issued and that he further understood that as the result of issuance of a
discharge under conditions other than honorable he might be ineligible for
many or all benefits as a veteran under both Federal and State laws and
that he might expect to encounter substantial prejudice in civilian life.

11.  On 9 February 1981, the separation authority approved the
recommendation for discharge and directed that the applicant be furnished a
discharge under other than honorable conditions.


12.  The applicant was discharged under other than honorable conditions on
13 February 1981 under the provisions of Army Regulation 635-200, paragraph

14-33b(1) for misconduct due to frequent incidents of a discreditable
nature with civil or military authorities.  He had served 1 year, 8 months,
and 10 days of creditable active service with 14 days of lost time due to
AWOL.

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  Chapter 14, paragraph 14-
33b(1), provided for discharge due to frequent incidents of a discreditable
nature with civil or military authorities.  A discharge under other than
honorable conditions was normally considered appropriate.

14.  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.  There is no evidence of record which shows the applicant was diagnosed
with a medical or mental condition prior to his discharge on 13 February
1981.  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.

2.  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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 13 February 1981; therefore, the time for the
applicant to file a request for correction of any injustice expired on 12
February 1984.  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

JA_____  JP______  SF______  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 Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008640                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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