RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 MAY 2004
      DOCKET NUMBER:   AR2003097903


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 his undesirable discharge be corrected to
show that he was discharged because of medical reasons.

2.  The applicant states that he was unable to perform his duties because
of PTSD (posttraumatic stress disorder) after his tour of duty in Vietnam.
He states that his PTSD was diagnosed by a “civil court doctor.”

3.  The applicant provides a copy of his Department of Veterans Affairs
rating decision and a copy of a “Petition for Order of Treatment” and a
“Notice of Examination and Hearing” from the District Court for Tulsa
County, Oklahoma.  He also submits two statements attesting to his good
character and helpfulness.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 August 1971.  The application submitted in this case is
dated 18 September 2003.

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 limitation 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.  Records available to the Board indicate that the applicant enlisted and
entered active duty on 2 December 1966 after receiving a waiver as a
“youthful offender.”  His records indicate that in July 1964 the applicant
was charged with auto theft, in September 1964 with violating his
probation, in November 1964 of running away from a “boy’s home,” and in
December 1964 for running away again and unauthorized use of an automobile.
 Included with a recommendation that he be allowed to enlist in the Army
was a statement indicating that the applicant was unable to adjust to a
regular school setting and that the juvenile court counselor believed that
“a lot of this had to do with emotional stress resulting from the poor home
environment.”

4.  The applicant successfully completed training in the supply field and
was assigned to Fort Hood, Texas.  He reenlisted in November 1967 and in
January 1968 was assigned to Germany.   By February 1968 he had been
promoted to pay grade E-4.

5.  In June 1968 the applicant was punished under Article 15 of the Uniform
Code of Military Justice for being absent without proper authority and for
missing bed check.  His punishment included 14 days of extra duty and a
suspended reduction.

6.  The suspended reduction was apparently vacated, because the applicant’s
records indicate that he was reduced to pay grade E-3 in July 1968.  The
basis for the vacated action was not in records available to the Board.

7.  In January 1969 the applicant was reassigned to Vietnam.  He was
assigned duties as a supply specialist with the 101st Airborne Division.
In February 1969 he was again promoted to pay grade E-4.  In December 1969,
just prior to returning the United States, the applicant was awarded an
Army Commendation Medal.

8.  In January 1970 the applicant departed Vietnam and was assigned to Fort
Sill, Oklahoma.  The applicant was born in Tulsa, Oklahoma.

9.  Civilian authorities arrested the applicant in Chickasa, Oklahoma, on
28 February 1970, for reckless driving.  He was on a “pass” at the time and
was fined and released.

10.  On 10 March 1970 the applicant departed AWOL (absent without leave).
He was apprehended by civilian authorities in St. Louis, Missouri and held
until military authorities retrieved him on 22 March 1970.

11.  In July 1970 the applicant was punished for failing to go to his
appointed place of duty.  His punishment included reduction to pay grade E-
3.

12.  In August 1970 the applicant departed AWOL.  He returned to military
control in October 1970 and was convicted by a special court-martial.  On
6 December 1970 he again departed AWOL and returned to military control on
31 December 1970 and was then convicted by a special court-martial.  His
sentence included confinement at hard labor for 4 months.

13.  Following the applicant’s release from confinement in March 1971 he
again immediately departed AWOL and was subsequently dropped from the rolls
of the Army.

14.  The applicant apparently returned to military control in July 1971 and
was ultimately discharged on 12 August 1971 under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His
service was characterized as under other than honorable conditions and he
was issued an undesirable discharge certificate.  Documents associated with
the applicant’s administrative separation action were not in records
available to the Board.
15.  There were no service medical records available to the Board, or
provided by the applicant.

16.  In February 1973 his petition to have his discharge upgraded by the
Army Discharge Review Board was denied.

17.  According to documents provided by the applicant in support of his
request, in September 1984 a petition was filed with the District Court for
Tulsa County, Oklahoma requesting that the applicant be “taken into custody
and detained pending examination and hearing….”  The document notes that on
7 September 1984, more than 13 years after his discharge from the Army, the
applicant admitted that he started a fire in the house where his spouse and
children were residing and that he told his mother that he “stood there and
watched it burn and than everyone in the house was dead and that now the
‘viet-cong’ were coming after him.”  The document also notes that it was an
“arson attempt” and there is no indication that anyone was killed in the
fire.  A second document notes that an “examination and hearing” was
scheduled for 13 September 1984.  The results of that examination and
hearing were not available to the Board.

18.  A Department of Veterans Affairs rating document notes that the
applicant was originally awarded a 30 percent disability rating for PTSD
and that it was subsequently increased to 100 percent effective 9 February
1988.

19.  The two statements submitted in support of the applicant’s petition
note that in spite of his PTSD he is always a help to people in the
community and that although he is quiet he is a humble leader who is
“strong and yet gently compassionate.”

20.  Army Regulation 635-40, which establishes the policies and procedures
for the separation or retirement of Soldier’s by reason of physical
disability states that Soldier may not be referred for, or continue,
physical disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions unless the general court-martial
convening authority determines that the disability is the cause, or a
substantial contributing cause, of the misconduct that might result in a
discharge under other than honorable conditions.

21.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a VA rating does not establish error or injustice in the basis
for the individual’s Army Discharge.  An Army disability rating is intended
to compensate an individual for interruption of a military career after it
has been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The VA, which has
neither the authority, nor the responsibility for determining physical
fitness for military service, awards disability ratings to veterans for
conditions that it determines were incurred during military service and
subsequently affect the individual’s civilian employability.  The Army
rates only conditions determined to be physically unfitting at the time of
discharge, thus compensating the individual for loss of a career; while the
VA may rate any service connected impairment, including those that are
detected after discharge, in order to compensate the individual for loss of
civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
applicant's administrative separation was accomplished in accordance with
applicable laws and regulations, and as a result of his own request.

2.  The evidence available to the Board indicates that the applicant had
behavior problems prior to being assigned to Vietnam and even prior to his
enlistment in the Army.  The fact that he was diagnosed with PTSD more than
13 years after his voluntary discharge from the Army in order to avoid
trial by court-martial is not evidence that he should have been separated
by reason of disability in 1971.

3.  Additionally, the two statements submitted in support of the
applicant’s request indicate that in spite of his PTSD he has continued to
contribute in a positive way to members of his community which would serve
as evidence that the applicant is capable of making appropriate choices in
his conduct.

4.  There is no evidence, and the applicant has not provided any, that his
medical condition was such that it precluded performance of his military
duties.  A rating action by the VA does not necessarily demonstrate any
error or injustice by the Army.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  Any rating
action by the VA does not compel the Army to modify its reason or authority
for separation.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 August 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired in on
11 August 1974.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RS ___  __TO ___  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.




            _____Melvin Meyer________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097903                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040527                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |