RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20060014253


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |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 time lost be reviewed and
that it be given back to him as time served.

2.  The applicant states, in effect, he had a medical problem (blackouts
and traumatic headaches) after having a concussion.  This information was
overlooked at his physical examination.  He adds that the lost time
hinders him from, in effect, having 180 days of active duty service to
qualify as a veteran.

3.  In support of his request, the applicant provides no additional
information or documentation beyond his application to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 December 1970, the date of his discharge.  The application
submitted in this case is dated 28 September 2006 and was received for
processing on 6 October 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 he was inducted into the Army of the
United States on 11 May 1970.

4.  The applicant's DD Form 47, Record of Induction, shows that at the time
of his induction, he was under doctor's care for injuries he sustained in
an automobile accident on 19 September 1968.

5.  A memorandum, dated 25 September 1968, prepared by the applicant's
attending physician, apparently in conjunction with his induction
processing into the Army, states he was admitted to in-patient care at St.
Louis – Little Rock Hospital and was released on 20 September 1968.  He was
readmitted to the hospital on 24 September and was still confined on 25
September 1968 with an admission diagnosis of "post traumatic headaches."

6.  On 11 May 1970, the applicant underwent a pre-induction physical
examination at the Armed Forces Entrance Examination Station, St. Louis,
Missouri.  An entry appears in Item 73 (Notes), of the SF 88, which
states, "Letter(s) reviewed and considered in physical profile."  The
applicant's examining physician made a notation in Item 74 (Summary of
Defects and Diagnoses), on the report of medical examination, that the
applicant had a past history of concussion.  The applicant was qualified
for induction based on this physical examination.

7.  The evidence shows the applicant completed his basic combat training
at Fort Leonard Wood, Missouri, and was sent to Redstone Arsenal,
Alabama, to undergo on-the-job training as a cook.

8.  On 29 September 1970, the applicant received a special court-martial.
He was found guilty of feigning severe headaches and illness from 11 to 27
August 1970, for the purpose of avoiding work in the mess hall and of two
specifications of willfully disobeying the orders of his superior
commissioned officers on 28 and 29 August 1970.  The applicant was
sentenced to be confined at hard labor for 4 months and to forfeit $40.00
pay per month for 4 months.  The sentence was approved and ordered
executed on 15 October 1970.

9.  Item 44 (Time Lost Under Section 972, Title 10, United States Code), of
the applicant's DA Form 20, Enlisted Qualification Record, shows the
applicant was confined from 1 September through 28 September 1970 (28 days)
and from 30 September 1970 through 14 December 1970 (76 days).

10.  The applicant was processed for discharge under the provisions of Army
Regulation 635-212, for unfitness.  His discharge was approved and he was
discharged in the rank and pay grade, private, E-1, and given a discharge
characterized as under conditions other than honorable on 15 December 1970.
 On the date of his discharge, the applicant had completed 3 months and 22
days total active service.

11.  On 9 December 1970, the US Army Correctional Training Facility, Fort
Riley, Kansas, published Special Court-Martial Orders Number 788.  In these
orders all unexecuted portions of the sentence pertaining to confinement at
hard labor and forfeiture of pay in the special court-martial case were
remitted upon his date of discharge.

12.  The applicant's record contains a Standard Form (SF) 88, Report of
Medical Examination, which was completed in conjunction with his separation
physical
examination, on 25 November 1970.  There is an absence of any comments or
indication of residual problems the applicant may have been experiencing as
a result of his accident prior to entering active duty.  The applicant was
qualified for separation based on this medical examination.

13.  An SF 89, Report of Medical History, completed in part by the
applicant, during his separation physical examination, on 25 November
1970, is contained in the applicant's service personnel records.  In item
20 ([in response to questions related to the question] "Have you ever had
or have you now)":  he entered a "no" answer to questions related to:
frequent or severe headaches, dizziness or fainting spells, history of
head injury, and periods of unconsciousness.

14.  On 24 October 1974, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.  On 4 April 1975, the ADRB
notified him that after careful consideration of his military record and
all other available evidence, it was determined he had been properly
discharged.  His request for an upgrade of his discharge was denied.

15.  The applicant applied to the Department of Defense Discharge Review
Program (Special) for an upgrade to his discharge on 9 May 1977.  On 11
July 1977, the applicant's discharge was upgraded to a general, under
honorable conditions discharge.  The lost time the applicant experienced as
a result of the confinement resulting from his conviction by special court-
martial was left undisturbed by the DoD Review Program (Special).

16.  On 19 July 1978, the ADRB reviewed the applicant's case under Public
Law 95-126.  The Board affirmed the applicant's discharge upgrade under
Uniform Standards.  The applicant's lost time was not addressed by the
ADRB.

17.  On 4 August 1978, the applicant's upgrading of his discharge was
reviewed by the Office of The Adjutant General and The Adjutant General
Center.  The applicant was notified that the DoD Discharge Review Program
(Special) had affirmed the upgrading of his discharge under Uniform
Standards.  The applicant's lost time was not addressed by the DoD Review
Program (Special).

18.  Army Regulation (AR) 635-5 prescribed the separation documents which
were prepared for individuals upon retirement, discharge, or release from
military service. This regulation provided that time lost under Section
972, Title 10, United States Code, would be entered in item 26a (of the 1
July 1966 edition of the DD Form 214) and in Item 21 (of the 1 November
1972 edition of the DD Form 214).

19.  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.  The U.S. Court of Appeals,
observing that applicants to the Army Discharge Review Board (ADRB) are
by statute allowed 15 years to apply there, and that this Board's
exhaustion requirement (Army Regulation 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3-year
limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received a special court-martial and
was found guilty of feigning severe headaches and illness for the purpose
of avoiding work in the mess hall and of two specifications of willfully
disobeying the orders of his superior commissioned officers.  He was
sentenced, in addition to a forfeiture of pay, to confinement at hard
labor for 4 months.

2.  The applicant was confined from 1 September through 28 September 1970
(28 days) and from 30 September 1970 through 14 December 1970 (76 days).

3.  The applicant was processed for discharge for unfitness.  His discharge
was approved and he was discharged in the rank and pay grade, private, E-1,
and given a discharge characterized as under conditions other
than honorable.  On the date of his discharge, the applicant had completed
3 months and 22 days net active service.  On the date of his discharge he
also had 104 days lost time due to confinement.

4.  The applicant's allegation that his medical problems were not
considered is incorrect.  His medical difficulties were considered at the
time he was inducted and at the time of his discharge.  These same
difficulties were also considered in the decision-making process which
resulted in an upgrade of his discharge to general, under honorable
conditions.

5.  The applicant provided no evidence to show he did not lose 104 days
active duty service due to confinement as a result of the sentence of a
court-martial.  The Board does not return lost time to applicants without
indisputable evidence that an error was committed and their duty status was
incorrectly reported.

6.  The applicant's discharge, characterized as under conditions other than
honorable, was upgraded by the Department of Defense Discharge Review
Program (Special) to a general, under honorable conditions discharge.  The
lost time the applicant experienced as a result of the confinement
resulting from his conviction by special court-martial was left undisturbed
by the DoD Special Review Program.

7.  The ADRB reviewed the applicant's case under Public Law 95-126.  The
Board affirmed the applicant's discharge upgrade under Uniform Standards.
The applicant's lost time was not addressed by the ADRB.

8.  The applicant's upgrading of his discharge was reviewed by the Office
of The Adjutant General and The Adjutant General Center.  The applicant
was notified that the DoD Discharge Review Program (Special) had affirmed
the upgrading of his discharge under Uniform Standards.  The applicant's
lost time was not addressed during this review.

9.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 4 August 1978; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 3 August 1981.  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

___JP___  __LDS___  ___JH__  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.




                                  _____Linda D. Simmons_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060014253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0135                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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