RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 March 2008
      DOCKET NUMBER:  AR20070016205


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

      The following members, a quorum, were present:

|     |Mr. Frank C. Jones                |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Mr. Scott W. Faught               |     |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 DD Form 214 (Armed Forces
of the United States Report of Transfer or Discharge) be amended to show he
was separated for disability.

2.  The applicant states, in effect, that he was separated for physical
disability, not for administrative reasons.

3.  The applicant provides a separate statement, dated 2 November 2007; a
Statement of the Facts Military Discharge Review; his DD Form 214; a DD
Form 215 (Correction to DD Form 214); a letter, dated 6 August 2007; and an
email, dated 9 August 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army on 11 July 1967.  He was
hospitalized at Brooke General Hospital, Fort Sam Houston, TX on 30
November 1967.

3.  On 9 January 1968, a Medical Evaluation Board found the applicant to be
medically unfit due to hydrocephalus, communicating, mild, arrested;
chronic brain syndrome associated with congenital cranial anomaly; and
color blindness, congenital.  All three conditions were determined to have
existed prior to service (EPTS).

4.  On 8 February 1968, the applicant requested discharge for physical
disability and understood that if his request was approved he would be
separated by reason of physical disability – EPTS.  On 9 February 1968, a
Physical Evaluation Board found the applicant to be unfit and recommended
his separation without entitlement to disability benefits.
5.  On 16 February 1968, the applicant was honorably discharged due to
physical disability without severance pay.

6.  The applicant’s discharge orders show his authority for discharge as
paragraph 9-9, Army Regulation 635-40.  Item 11c (Reason and Authority) of
his DD Form 214 shows the authority as “AR 635-200” with a separation
program number (SPN) of 277.  Item 15 (Reenlistment Code) shows he was
given a reenlistment code of 4.  Item 30 (Remarks) contains the entry “Para
10, AR   601-210 applies.”

7.  On 24 April 1973, the applicant’s DD Form 214 was corrected to change
his reenlistment code to 3; to delete the entry, “Para 10, AR 601-210
applies” in item 30; and to add the entry, “Table 2-5, AR 601-210 applies.”

8.  Army Regulation 635-5 (Separation Documents), dated 23 January 1967,
change 2, dated 24 October 1967, stated that SPN 277 would be used when a
Soldier was separated under the provisions of chapter 9, Army Regulation
 635-40 (Physical disability – EPTS – established by physical evaluation
board proceedings (not entitled to receive severance pay)).

9.  Army Regulation 601-210 (Qualifications and Procedures for Processing
Applicants for Enlistment and Reenlistment in the Regular Army) paragraph
   10 of the version in effect at the time of the applicant’s separation,
governed classes of Soldiers ineligible to enlist or reenlist with no
waivers granted.

10.  Army Regulation 601-210, Table 2-5 of the version in effect at the
time the applicant’s DD Form 215 was prepared, listed waivable moral and
administrative disqualifications.

11.  Army Regulation 601-201 stated at the time (and currently states) that
reenlistment code 4 applied to persons not qualified for continued Army
service, and the disqualification was not waivable.  Reenlistment code 3
applied to persons not qualified for continued Army service, but the
disqualification was waivable.

DISCUSSION AND CONCLUSIONS:

1.  Item 11c of the applicant’s DD Form 214 contains an incorrect authority
and should be corrected.  The correct authority was Army Regulation 635-40,
chapter 9 and not Army Regulation 635-200.

2.  Item 11c of the applicant’s DD Form 214 contains the correct SPN.  SPN
277 at the time was used when a Soldier was separated under the provisions
of chapter 9, Army Regulation 635-40 (Physical disability – EPTS –
established by physical evaluation board proceedings (not entitled to
receive severance pay)).  Those were the provisions and conditions under
which the applicant was separated.

BOARD VOTE:

__fcj___  __cd____  __swf___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
amending item 11c of his DD Form 214 to delete the entry, “AR 635-200” and
add the entry, “chapter 9, AR 635-40.”




                            ____Frank C. Jones____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070016205                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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