MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2002081480


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his undesirable discharge and clemency certificate be changed to honorable. He served honorably in Vietnam, engaged in combat, and returned home to have a nervous breakdown. His clemency certificate has a negative effect. He was informed that his discharge would be automatically upgraded and that his clemency certificate would be the same as an upgrade; however, they were not. He had problems prior to his honorable service in Vietnam. He is now suffering from Post Traumatic Stress Disorder (PTSD), which was directly related to events that occurred in Vietnam. He has been hospitalized and is currently under treatment. In support of his application he submits a copy of his DD Form 214 (Report of Transfer or Discharge), DD Form 215 (Correction to DD Form 214, dated 26 January 1976), and two letters of support.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 30 November 1966, as a supply clerk. He served in Vietnam from 30 January 1968 to 29 January 1969.

He was convicted by a special court-martial on 15 September 1967 of being AWOL from 20 June to 17 July 1967 (27 days) and from 23 July to 9 August 1967 (17 days). His sentence consisted of a forfeiture of pay and confinement at hard labor for 3 months.
Between June and November 1968, he received nonjudical punishment on three occasions under Article 15, Uniform Code of Military Justice (UCMJ), for sleeping on post as a sentinel, for being present in an off–limits area on two occasions, and for disobeying a lawful order. His punishments consisted of forfeitures of pay, reductions to PV2/E-2 and PVT/E-1, restrictions, and extra duties. He was also counseled by his command on six occasions during this period.

On 19 December 1968, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212, for unfitness. He based his recommendation on the applicant's unsatisfactory performance and numerous disciplinary infractions. After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The applicant was barred from reenlistment on 24 December 1968.

The separation authority's approval of the recommendation for discharge is not in the available records. However, orders show that the applicant was discharged on 18 February 1969 under other than honorable conditions. He had a total of 1 year, 10 months, and 7 days of creditable service and had 132 days of lost time due to AWOL and confinement.

The applicant provided a copy of a letter that was prepared by a physician from the Baystate Medical Center, dated 28 December 2001. The physician stated that the applicant returned to the center for a follow-up consultation. He had been receiving opiates (a drug that induces sleep) through the center for many years for a cervical nerve root injury. He was taking medication that was recently increased due to pain. He also stated that the applicant had been using marijuana since the Vietnam War for treatment of PTSD that was diagnosed in the past by another psychiatrist. He was never treated for PTSD or depression; however, options were later discussed. He was required to be evaluated for PTSD with further follow-ups on an as needed basis.

The applicant provided a second letter from a licensed social worker, dated 3 June 2002. It stated that the applicant entered psychotherapy on 13 May 2002 for issues related to chronic pain management, major depression, and unresolved grief and trauma dating back to his service in Vietnam. He currently met the full criteria for PTSD that exacerbated his depressive and somatic symptoms. He was motivated for treatment and has engaged in the treatment process.

The applicant’s medical records are unavailable for review by this Board.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 26 August 1969. The ADRB determined that his discharge was proper and denied his request on 7 January 1970.

The applicant provided a copy of his DD Form 215, dated 26 January 1976, which shows item 30 of his DD Form 214 was corrected to read "DD Form 1953A Clemency Discharge issued pursuant to Presidential Proclamation Number 4313."

The applicant's records contain a copy of a letter, dated 24 February 1976, from the Assistance Adjutant of the Reserve Components Personnel and Administration Center. The letter informed the applicant that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313. It also stated that his case was denied by the ADRB on 7 January 1970, and that he may apply to this Board for relief.

The applicant reapplied to the ADRB on 17 September 2002 for an upgrade of his discharge. However, the ADRB was precluded from accepting his application due to its statue of limitations (15 years). The Board accepted his application (DD 149), dated 21 October 2002.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily
entered into and completed an alternate public work program specifically
designated for former soldiers who received a less than honorable discharge for
AWOL related incidents between August 1964 and March 1973. Under this
proclamation, eligible deserters were given the opportunity to request discharge
for the good of the service with the understanding that they would receive an
undesirable discharge. Upon successful completion of the specified alternative
service, the deserter was issued a clemency discharge. A clemency discharge does not restore veterans benefit; rather, it restores Federal and, in most instances state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original characterization of service, undesirable, would be retained.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 February 1969, the date of separation. The time for the applicant to file a request for correction of any error or injustice expired on 18 February 1972.

The Board has noted the applicant's contentions. The applicant was issued a clemency discharge pursuant to Presidential Proclamation 4313. It is noted that the clemency discharge did not provide for an upgrade of the applicant's discharge. It is also noted that the applicant's medical records are unavailable for review and that his diagnosis for PTSD and letters of support were prepared 30 years after his discharge.

The application is dated 21 October 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__ra___ __be____ ___lb___ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002081480
SUFFIX
RECON
DATE BOARDED	20030710
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19690218
DISCHARGE AUTHORITY	AR .635-212
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360/191
2.
3.
4.
5.
6.