RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 April 2007
      DOCKET NUMBER:  AR20060013234


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Qawiy A. 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 discharge be upgraded to
honorable; compensation benefits for his injury and medical benefits (i.e.,
a medical discharge); compensation for the one year and nine months left on
his enlistment contract (i.e., reinstatement to show he completed his full
enlistment); monetary damages and punitive damages for being incarcerated
by the Army; promotions and training credit that will make him whole; and
compensation for being discriminated against.

2.  The applicant also desires to appear before the Board.

3.  The applicant further demands that this Board bring Lieutenant Colonel
Oliver North up on charges.

4.  The applicant states that his military occupational specialty (MOS) of
94B (Cook) was changed in 1971 to 11B (Light Weapons Infantryman) by a
white male lieutenant who was in charge of the mess hall.  The lieutenant
transferred to infantry, then had the applicant transferred and locked up
in jail.  The lieutenant and a white sergeant were prejudiced.

5.  The applicant further states that Lieutenant Colonel North violated the
human rights laws of America by confessing to charges of selling drugs in
the black communities.  That started drug wars and gang-related killings
and caused AIDS and the collapse of black communities.  The Central
Intelligence Agency  continues to sell and distribute cocaine in the black
neighborhoods.  His point is that Lieutenant Colonel North was not court-
martialed for his actions, nor did he resign his commission, but instead he
was given a hero’s discharge.

6.  The applicant provides an 8-page statement and his DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 December 1971.  The application submitted in this case is
dated 31 August 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 10 September 1970.  He
complete basic combat training and advanced individual training and was
awarded MOS 94B (Cook).

4.  On 12 March 1971, the applicant was assigned to Headquarters and
Headquarters Company, 2d Battalion, 13th Infantry, Germany and performed
duties as a cook.

5.  On 16 August 1971, the applicant broke his wrist.

6.  On 9 November 1971, the applicant’s commander, Captain J___, counseled
him concerning the applicant’s use of disrespectful language to Sergeant
V___.

7.  On or about 18 November 1971, the applicant was transferred to Company
C, 2d Battalion, 13th Infantry and performed duties as a cook.  There is no
evidence of record to show the applicant was reclassified into MOS 11B.

8.  On an unknown date, Captain J___ initiated separation action on the
applicant under Army Regulation 635-212 for unsuitability.  The applicant
was advised of his right to present his case before a board of officers, to
submit statements in his own behalf, to be represented by counsel, to
request a physical and mental evaluation, or to waive his rights.

9.  The separation packet included statements from Captain J___, Captain
B___, First Lieutenant C___, and First Sergeant C___, all of whom stated,
in effect, that the applicant was one of the most apathetic Soldiers they
had known.  The statement from Captain B___ noted the applicant’s apathetic
nature eventually led to his court-martial charge for two counts of being
missing from his place of duty.

10.  There is no evidence of record to show the applicant was placed in pre-
trial or any other type of confinement.

11.  The applicant was advised by counsel of the basis for his contemplated
separation.  The applicant waived consideration of his case by a board of
officers, waived personal appearance before a board, waived representation
by counsel, waived a psychiatric examination, and elected not to submit
statements in his behalf.

12.  The applicant’s commander formally recommended the applicant’s
separation under the provisions of Army Regulation 635-212 because of
apathy, defective attitudes, and inability to expend effort constructively.


13.  On 7 December 1971, the appropriate authority approved the
recommendation and directed issuance of a General Discharge Certificate.

14.  On 22 December 1971, the applicant was discharged with a general under
honorable conditions discharge under the provisions of Army Regulation
  635-212 for unsuitability.  He had completed 1 year, 3 months, and 13
days of creditable active service with no lost time.

15.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  The regulation
provided, in pertinent part, that members were subject to separation for
unsuitability for inaptitude, character and behavior disorders, apathy
(lack of appropriate interest), defective attitudes, inability to expend
effort constructively, alcoholism, and enuresis.  A general under honorable
conditions characterization of service was normally 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

17.  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.
 In pertinent part, 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 disability compensation is not an entitlement
acquired by reason of service-incurred illness or injury; rather, it is
provided to Soldiers whose service is interrupted and they can no longer
continue to reasonably perform because of a physical disability incurred or
aggravated in service.

18.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-
11 states applicants do not have a right to a hearing before the ABCMR.
The regulation provides that the Director of the ABCMR or the ABCMR may
grant a formal hearing before which the applicant, counsel, and witnesses
may appear whenever justice requires.

19.  Title 10, U. S. Code, section 1552 states the Secretary of a military
department may correct any military record of the Secretary’s department
when the Secretary considers it necessary to correct an error or remove an
injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with regulations applicable at the time with the appropriate
characterization of service.  Four different individuals gave statements
that the applicant had an apathetic attitude.  Even though the applicant
had no record of disciplinary actions (other than one counseling) taken to
completion, those statements indicated that his conduct and his performance
of duty did not meet the acceptable standards for Army personnel that would
warrant a fully honorable discharge.

2.  There is no evidence of record to show the applicant’s broken wrist
permanently affect the performance of his duties as a cook.  (There is no
evidence of record to show he was reclassified to light weapons
infantryman.)  His service was interrupted because of his apathetic
attitude, not because of his broken wrist.  Therefore, there is
insufficient evidence that would warrant changing his administrative
separation to a medical separation.

3.  There is no evidence to show the applicant was improperly discharged;
therefore, there is insufficient evidence that would warrant showing he was
reinstated until his enlistment was completed or to show he should receive
any additional promotion or training credit.

4.  There is no evidence of record to show the applicant was incarcerated
or, if he was, that such incarceration was illegal or significantly
detrimental to him.

5.  The ABCMR is limited by statute to correcting records of its own
Department. It has no authority to award “compensation for being
discriminated against” or to consider cases belonging to other Services.
Lieutenant Colonel North was a     U. S. Marine Corps officer.

6.  The applicant’s case was carefully analyzed by the staff of the Board
and considered by the Board and it was determined that no formal hearing
was required.  If the applicant is not satisfied with the results of the
informal Board hearing, he may submit his application again, with new
evidence or other relevant matter not previously available to the Board,
for reconsideration.  The staff of the Board, however, is authorized to
determine whether or not he has submitted any such evidence.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    21 December 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

__jpi___  __jap___  __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.




                                  __John P. Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013234                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070403                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19711222                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |A41.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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