RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 February 2007
      DOCKET NUMBER:  AR20060010527


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Qawiy D. Sabree               |     |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 administrative discharge be
changed to a medical discharge.

2.  The applicant states that his company commander was being unfair with
him. So, he gave a false statement to try to get out service.  At the time
of his discharge, he was not told about his medical condition.

3.  The applicant provides a Veterans Administration (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on or about 28 July 1980, the date he learned of his medical
condition.  The application submitted in this case is dated 17 July 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 Regular Army on 19 November 1970.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 63K (Heavy Equipment Repairman).
He was honorably discharged on 13 October 1971 for the purpose of
immediately reenlisting on 14 October 1971.

4.  On 25 May 1972, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a
lawful order by not having a valid driver’s license.  His punishment was a
forfeiture of $80.00 pay per month for one month, suspended for three
months.  On 10 July 1972, the suspension was vacated.

5.  On 24 July 1972, the applicant accepted NJP under Article 15, UCMJ for
failing to go to his appointed place of duty and for disobeying a lawful
command by driving a motorcycle without a valid driver’s license.

6.  On 12 January 1973, the applicant accepted NJP under Article 15, UCMJ
for disobeying a lawful order to deliver rations as he was instructed.

7.  On 22 June 1973, the applicant was convicted by a summary court-martial
of being absent without leave (AWOL) from 30 May 1973 to 16 June 1973.  He
was sentenced to be reduced to pay grade E-1, to forfeit $200.00 pay per
month for one month, and to perform hard labor without confinement for 30
days.

8.  On 27 June 1973, the applicant completed a separation physical
examination and was found qualified for separation.  Item 45 (Urinalysis)
of his Standard Form 88 (Report of Medical Examination) indicated his
urine’s specific gravity was 1.020 and a microscopic examination revealed
sulfosalicylic acid of plus-3.

9.  On 27 June 1973, a mental status examination was completed on the
applicant.  He was found to be mentally responsible, able to distinguish
right from wrong and to adhere to the right, and to have the mental
capacity to understand and participate in board proceedings.

10.  On 30 July 1973, action was initiated to separate the applicant under
the provisions of Army Regulation 635-200, chapter 13 for unfitness.

11.  The applicant was advised by counsel of the basis for the contemplated
separation action, waived consideration of his case by a board of officers,
waived personal appearance before such a board, and waived representation
by counsel.  He submitted no statement in his own behalf.

12.  On 1 August 1973, the applicant’s commander formally recommended he be
discharged under the provisions of Army Regulation 635-200, chapter 13 for
unfitness.  The commander cited the applicant’s involvement in the buying
and selling of drugs and in the larceny of government property; AWOL,
refusal to work after he returned from AWOL; and his one summary court-
martial and three Article 15s.

13.  On 1 October 1973, the applicant accepted NJP under Article 15, UCMJ
for failing to go to his appointed place of duty.

14.  The appropriate authority approved the recommendation, waived
rehabilitative transfer, and directed the applicant be furnished an
Undesirable Discharge Certificate.

15.  On 26 October 1973, the applicant was discharged, in pay grade E-1,
with a discharge under other than honorable conditions, under the
provisions of Army Regulation 635-200, chapter 13 for unfitness.  He had
completed a total of          2 years, 10 months, and 1 day of creditable
active service and had 37 days of lost time.

16.  On 1 August 1980, the VA granted the applicant service connection for
chronic renal failure with probably secondary malignant hypertension based
on the policy of benefit of reasonable doubt based on the policy of benefit
of reasonable doubt.  The VA Rating Decision noted that the Chief of the
Medical Services stated unequivocally that the applicant’s urinalysis in
the service showed renal disease.

17.  On 12 February 1982, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unfitness when they were involved in frequent incidents of a discreditable
nature with civil or military authorities and it was established that
further efforts at rehabilitation were unlikely to succeed or they are not
amenable to rehabilitation measures.

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.
 It states that the mere presence of an impairment does not, of itself,
justify a finding of unfitness because of physical disability.  It also
states an enlisted Soldier may not be referred for, or continue, physical
disability processing when action has been stared under any regulatory
provision which authorizes a characterization of service of under other
than honorable conditions.

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 applicant was
discharged for unfitness, frequent acts of a discreditable nature with a
characterization of service of under other than honorable conditions.
Given his record of service during his second enlistment, that appears to
have been an appropriately-awarded characterization of service.

2.  There is no evidence to show the applicant was ever physically unfit to
perform his duties.  In addition, since he was processed for separation
under a regulatory provision that authorized a characterization of service
of under other than honorable conditions, he would not have been eligible
for referral to the physical disability processing system.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on or about 28 July 1980; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 27 July 1983.  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

__mdm___  __jtm___  __qas___  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.




                                  __Mark D. Manning_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010527                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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