RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 February 2006
      DOCKET NUMBER:  AR20050008506


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Mr. David R. Gallagher            |     |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 he receive a medical discharge
in lieu of the under other than honorable conditions (UOTHC) discharge he
now holds.

2.  The applicant states, in effect, the doctor completing his separation
physical examination recommended he receive a medical discharge.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Report of Medical Examination (SF
88); and Medical Test Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 November 1981.  The application submitted in this case
is dated 31 May 2005.

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 enlisted in the Regular Army and
entered active duty on 10 June 1980.  He was trained in and awarded
military occupational specialty (MOS) 16C (Hercules Fire Control Crewman),
and the highest rank he attained while serving on active duty was private/E-
2 (PV2).

4.  Court-Martial charges were preferred against the applicant for
violating the following Articles of the Uniform Code of Military Justice
(UCMJ) by committing the offenses indicated:  Article 86, by being absent
without leave (AWOL); Article 90, by failing to obey a command; and Article
134, by breaking restriction.  Subsequent to consulting with legal counsel
and being advised of the basis for his contemplated court-martial, and of
the impacts of an UOTHC discharge, he voluntarily requested discharge for
the good of the service in lieu of trial by
court-martial, under the provisions of chapter 10, Army Regulation 635-200.


5.  The applicant underwent his final physical examination on 19 August
1981.  Item 5 (Purpose of Examination) of the Standard Form 88 completed on
the applicant contained the entry “Discharge”, which meant the examination
was being conducted based on his being processed for discharge under the
provisions of chapter 10, Army Regulation 635-200.  The attending physician
noted that the applicant had a severe restrictive airway disease in Item 74
(Summary of Defects); however, she did not indicate this was medically
disqualifying, and she did not recommend the applicant be processed through
medical channels.  She also noted that the applicant’s asthma condition was
being controlled by medication.  In Item 77, the attending physician
confirmed the applicant was qualified to be discharged from the Army.

6.  On 4 November 1981, the applicant was discharged under the provisions
of chapter 10, Army Regulation 635-200, by reason of administrative
discharge conduct triable by court-martial.  The DD Form 214 he was issued
confirms he completed a total of 1 year, 4 months and 16 days of creditable
active military service, and that he accrued 8 days of time lost due to
AWOL.  It also shows that he earned no awards during his active duty
tenure.

7.  On 10 January 1983, the Army Discharge Review Board (ADRB) voted to
deny the applicant’s request for an upgrade of his discharge after
concluding that his discharge was proper and equitable.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge UOTHC is normally considered appropriate.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

10.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier against the physical
requirements of the Soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a Soldier to be separated or retired because of physical
disability.

11.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 applicant’s contention that the doctor that completed his final
physical examination recommended he receive a medical discharge and the
supporting documents he submitted were carefully considered.  However,
there is insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense(s) punishable under the UCMJ with a punitive
discharge.  After consulting with defense counsel, the applicant
voluntarily requested discharge from the Army in lieu of trial by court-
martial.  The record further confirms all requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

3.  The SF 88 on file confirms the purpose of the applicant’s 19 August
1981 physical examination was for “Discharge”, which was based on his being
processed for separation under the provisions of chapter 10, Army
Regulation 635-200.  The attending physician in finding him qualified for
discharge in Item 77, was in fact clearing him for discharge under these
provisions.

4.  The applicant’s interpretation of the doctor’s recommendation on the SF
88 documenting his final physical examination, which is that it was a
recommendation for him to be medically discharged is incorrect.  The doctor
found his asthma condition was being controlled with medication at the
time, as indicated in Item 73 (Notes), and she cleared him for discharge.
The SF 88 contains no entries suggesting the doctor was recommending the
applicant’s separation processing through medical channels.  As a result,
there is an insufficient evidentiary basis to support granting the
requested relief.

5.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 10 January 1983.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 9 January 1986.  He failed to 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KLW_  ___CD __  ___DRG _  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.




            ____Kenneth L. Wright_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008506                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/11/04                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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