RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060017422 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 that the reason for his honorable discharge be changed to medical disability.

2.  The applicant states that he was suffering from post traumatic stress disorder and had an unknown skin disease at the time of his discharge.  He also contends that he never received a full physical when separated.

3.  The applicant provides a Veterans Affairs (VA) message dated 5 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 November 1976, the date of his discharge.  The application submitted in this case is dated 16 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.  On 9 December 1975, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11E1O (Armor Crewman).

4.  On 13 June 1976, the applicant was assigned for duty as an armor crewman with the 4th Squadron, 7th Cavalry Regiment, 2nd Infantry Division, in the Republic of Korea.

5.  On 2 August 1976, the applicant was counseled for substandard conduct.

6.  On 25 August 1976, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk and disorderly and assaulting a military policeman.  The punishment included reduction to private, pay grade E1, a forfeiture of $26.00 pay per month for 1 month, and 14 days restriction and extra duty.
7.  On 15 September 1976, the applicant was counseled for violation of the pass policy.

8.  On 15 and 16 September 1976, the applicant was counseled for being drunk and disorderly.  On 17 September 1976, he was again drunk, disorderly, and resisted apprehension.

9.  On 4 October 1976, the applicant underwent a separation physical.  He was found qualified for separation with no defects or stated diagnosis.  His physical profile was listed as 1.1.1.1.1.1. 

10.  On 23 October 1976, the applicant was counseled for violation of the pass policy and being drunk and disorderly downtown.

11.  On 26 October 1976, the applicant underwent a mental status evaluation.  No overt mental illness was noted and the applicant was found to have normal behavior, to be fully alert and oriented, to possess clear thinking, normal thought content, and to have good memory.  He was able to distinguish right from wrong and to adhere to the right.  He had the ability to understand all proceedings relevant to the administrative discharge process to be able to participate in board proceedings.  

12.  On 27 October 1976, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-37, for substandard performance, including his poor attitude, lack of self discipline, and failure to demonstrate promotion potential.  

13.  On 28 October 1976, the applicant consulted with counsel and voluntarily consented to this discharge.  He elected not to make a statement in his own behalf.  

14.  On 2 November 1976, the appropriate authority approved the recommendation and directed that he be issued an Honorable Discharge Certificate. 

15.  Accordingly, he was honorably discharged on 18 November 1976.  He had completed 11 months and 10 days of creditable active service.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provided authorization for separation for the convenience of the government.  Paragraph 5-37, in pertinent part, provided for a discharge based upon failure to demonstrate promotion potential.  A general discharge under honorable conditions was normally issued.

17.  On 5 September 2006, the VA provided a message indicating that the VA had granted a service connected disability for a treponemal infectious condition, with a zero percent rating.

18.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

19.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.

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

3.  The applicant received a zero percent disability rating from the VA.    Furthermore, the Army did not find him physically unfit for duty.  Therefore, he does not qualify for a medical separation or retirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 November 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 November 1979.  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

__RSV __  __DLL___  __WFC _  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.




__       William F. Crain_________
          CHAIRPERSON




INDEX

CASE ID
AR2060017422
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19761118
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0400
2.

3.

4.

5.

6.