RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010123


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 general, under honorable
conditions discharge (GD) of 1 February 1974 be changed to a medical
discharge.

2.  The applicant states, in effect, he should have been medically
discharged and it is an injustice that he never received compensation.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Separation Document (DD Form 214);
Patient Admission Information (MF 242); Doctor's Orders (DD Form 728);
Clinical Record Cover Sheet (DA Form 3647-1), dated 28 February 1973;
Clinical Record (SF 511), dated 26 February 1973; Clinical Record (SF 509),
dated 27/28 February 1973; Nursing Notes (DD Form 640), dated 26 February
1973; Report of Medical History (SF 93), dated 3 January 1973; Report of
Medical Examination (SF 88), dated 11 January 1973;  Serviceman's Statement
Concerning Application for Compensation from the Veterans Administration
(DA Form 664); Department of Veterans Affairs Rating Decision (VA Form 21-
6796); Counseling Record (DA Form 2496), dated 15 March 1973; Discharge
Orders; and Statement of Medical Condition (DA Form 3082), dated 1 February
1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 February 1974, the date of his discharge.  The
application submitted in this case is dated 3 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's record shows that he enlisted in the Regular Army and
entered active duty on 11 January 1973.  He successfully completed basic
combat training at Fort Ord, California, and was assigned to Fort Carson,
Colorado, to attend advanced individual training (AIT) in military
occupational specialty (MOS) 11D (Armor Intelligence Specialist).  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.
4.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was advanced to private/E-2
(PV2) on 12 May 1973, and that this was the highest rank he attained while
serving on active duty.  Item 33 also shows that he was reduced to
private/E-1 (PV1) for cause on 17 October 1973.  Item 44 (Time Lost), that
he accrued 82 days of time lost due to being absent without leave (AWOL) on
six separate occasions between 30 April and 19 December 1973.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial 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:  2 February 1973, for absenting himself from
his unit on 31 January 1973; 3 February 1973, for breaking restriction on
28 January 1973; 12 May 1973, for being AWOL from 30 April through 1 May
1973; 14 August 1973, for being AWOL from 30 June through 11 July 1973 and
from 13 July through
6 August 1973; and 10 January 1974, for being AWOL from 23 November through
19 December 1973.

6.  On 17 October 1973, a summary court-martial (SCM) found the applicant
guilty of two specifications of violating Article 86 of the UCMJ by being
AWOL from on or about 22 August 1973 to on or about 23 August 1973 and from
on or about 4 September 1973 to on or about 20 September 1973.  The
resultant sentence was a forfeiture of $150.00, reduction to PV1, and 21
days restriction.

7.  The applicant's Military Personnel Records Jacket (MPRJ) is void of a
complete separation packet containing all the facts and circumstances
surrounding his separation processing; however, it does contain a
recommendation for the applicant's separation under the provisions of
chapter 13, Army Regulation 635-200 from the applicant's battalion
commander, dated
21 January 1974.  The battalion commander stated that he interviewed the
applicant, who understood the ill effects an other than honorable discharge
could have on his life.

8.  In his recommendation, the applicant's battalion commander also
indicated that the applicant appeared to be unable to tolerate the idea
that anyone could have authority over him.  He stated the applicant joined
the Army to escape his father who was demanding that he get a job and
disassociate himself from drugs. The applicant found his leaders and
commanders in the Army more unsympathetic than his father, which led to a
long series of unauthorized absences, which the applicant said would
continue as long as he remained a Soldier.

9.  The battalion commander further stated in his elimination
recommendation  that rehabilitative reassignment of the applicant would
probably not be successful as demonstrated by the applicant's poor behavior
while at Fort Leonard Wood, Missouri, in spite of his belief that he had
been treated better there than anywhere else.

10.  The applicant's MPRJ also contains an "Action By Convening Authority"
endorsement, dated 23 January 1974.  In this document, the separation
authority approved the applicant's separation under the provisions of
chapter 13,
Army Regulation 635-200, by reason of unsuitability, and directed the
applicant receive a GD.

11.  On 1 February 1974, the applicant signed a statement of medical
condition, in which he confirms that he had underwent a separation medical
examination more than 3 working days prior to his departure from the place
of separation and to the best of his knowledge, since his last separation
examination, there had been no change in his medical condition.  His
Military Personnel Records Jacket (MPRJ) does not contain the actual
separation examination and there are no medical treatment records, or other
documents on file that indicate the applicant was suffering from a
disqualifying medical condition at the time of his discharge.

12.  On 1 February 1974, the applicant was separated under the provisions
of chapter 13, Army Regulation 635-200, by reason of unsuitability.  The DD
Form 214 he was issued at this time shows he held the rank of PV1 and
received a GD.  It also confirms he completed a total of 10 months and 3
days of creditable active military service and had accrued 82 days of time
lost due to AWOL.

13.  The applicant provides hospital and medical treatment records that
show he was admitted to the hospital on 26 February 1973 and treated for an
upper respiratory infection and bronchitis through 28 February 1973, when
he was discharged from the hospital.  These medical records give no
indication that this condition rendered the applicant unfit for further
service.

14.  The applicant also provides a SF 93 and SF 88 documenting his entrance
physical processing in January 1973.  These documents show he qualified for
enlistment.  He also provides a VA Rating Decision, dated 9 May 1984, which
shows he was denied service connection for bronchial asthma as it was not
incurred or aggravated while he was on active duty.  This document confirms
the VA had the applicant's military medical record and that it showed only
one acute and transitory episode during his active duty with no chronic
bronchitis shown.  It further indicated that his service medical records
were negative for any complaint of or treatment for asthma.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

16.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.

17.  The PEB also investigates the nature, cause, degree of severity, and
probable permanency of the disability of soldiers whose cases are referred
to the board.  It also evaluates the physical condition of the Soldier
against the physical requirements of the Soldier's particular office,
grade, rank, or rating.  Finally, it makes findings and recommendations
required by law to establish the eligibility of a Soldier to be separated
or retired because of physical disability.

18.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be changed to a medical
discharge and he should be compensated was carefully considered.  However,
there is insufficient evidence to support this claim.

2.  Although the evidence of record does not contain a complete separation
packet containing all the facts and circumstances surrounding the
applicant's discharge processing, it does contain the separation
recommendation of the applicant's battalion commander and the approval of
the separation authority.  Absent evidence to the contrary, it is concluded
that his separation processing for unsuitability was accomplished in
accordance with the applicable regulation in effect at the time.  All
requirements of law and regulation were met and his rights were fully
protected throughout the separation process.

3.  Further, the applicant's extensive disciplinary history and record of
misconduct clearly diminished the quality of his service below that
meriting a fully honorable discharge, and his GD accurately reflects his
overall record of short and undistinguished service.

4.  By law and regulation, the mere presence of impairment does not, of
itself, justify a finding of unfitness because of physical disability.  In
each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  The applicant’s military medical record provides no
indication that he suffered from a physical or mental condition that
rendered him unfit to perform his military duties at the time of his
discharge.

5.  The available medical records show that while the applicant was treated
for one acute and transitory episode of bronchitis while serving on active
duty, there was no evidence of chronic bronchitis shown.  Further, the
medical treatment records provided by the applicant while confirming his
treatment for this condition, provide no evidence that the applicant
suffered from a disabling medical condition that would have supported his
separation processing through medical channels (PDES) at the time of his
discharge.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 February 1974.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 31 January 1977.  He failed to 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

___HOF _  __WFC__  __DED__  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.




                                  _____Hubert O. Fry______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010123                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/13                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1974/02/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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