RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 JULY 2004
      DOCKET NUMBER:  AR2003099432


      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. Walter Morrison               |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Barbara Ellis                 |     |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, in effect, that his records be corrected to
show that he was retired for length of service.

2.  The applicant states, in effect, that he enlisted in the Regular Army
with the intention of making the Army a career.  However, as a result of
the wounds to his mind and body he was discharged.  He maintains he should
have been permitted to retire.  He states that he hopes to qualify for CRSC
(Combat-Related Special Compensation).

3.  The applicant provides a copy of his recent Department of Veterans
Affairs rating decision regarding PTSD (post traumatic stress disorder) and
a copy of a 1976 Board of Veterans Appeals decision denying increased
compensation for residuals of his gunshot wounds.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 October 1974.  The application submitted in this case is
dated 14 October 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 in
the Regular Army on 29 November 1966 and was discharged for the purpose of
immediate reenlistment on 25 November 1968.

4.  The applicant served two tours of duty in Vietnam.  His initial tour
commenced in November 1967 and concluded in September 1968.  His second
tour commenced in August 1970.  In October 1970, during the applicant’s
second tour of duty, he was wounded as a result of hostile action.  He
sustained gunshot




wounds to his neck and shoulder.  As a result of his wounds, he was
evacuated from Vietnam and assigned to Fort Bragg, North Carolina.  In
addition to his award of the Purple Heart, the applicant was also awarded
the Combat Infantryman Badge and a Bronze Star Medal for meritorious
service.

5.  The applicant arrived at Fort Bragg in February 1971 and on 10 August
1971 departed AWOL (absent without leave).  He surrendered to authorities
on
1 October 1974 and returned to military control.

6.  On 16 October 1974 he was discharged under other than honorable
conditions.  At the time of his discharge he had 4 years, 8 months, and 21
days of creditable service and more than 1000 days of lost time.  There is
no evidence he had any military service subsequent to his 1974 discharge.

7.  Ultimately, in 1975, the character of his discharge was upgraded to
under honorable conditions under Presidential Proclamation 4313
(Amnesty/Clemency Program).  In January 1977, under an extension of
Presidential Proclamation 4313, the discharge of former service members
wounded in combat or who received decorations for valor during the Vietnam
Era were reviewed.  Under that review, the applicant’s discharge was
affirmed in 1978.  In affirming the applicant’s discharge, the Army
Discharge Review Board noted that the applicant served with an excellent
record from the time of enlistment until his release from the hospital
after his second tour in Vietnam during which he was wounded.

8.  According to the documents provided by the applicant, the Board of
Veterans Appeals denied his requested for increased compensation for
residuals of his gunshot wounds in 1976.  It appears from those documents
that he had received a 10 percent rating by analogy to tender and painful
scars.  In 2002 the Department of Veterans Affairs, upon appeal, granted
the applicant a 50 percent disability rating for PTSD retroactive to April
1996, the date he initially filed his claim.  Originally the Department of
Veterans Affairs had rated the condition at 30 percent.

9.  Title 10 USC (United States Code) 3914 states that a soldier of the
Regular Army, who has completed 20, but less than 30 years of active
Federal service (AFS) in the United States Armed Forces may, at the
discretion of the Secretary of the Army, be retired at his or her request.





10.  Army Regulation 310-25 (Dictionary of United States Army Terms) states
that active Federal service is active enlisted or officer service in the
Armed Forces of the United States.  It does not include any duty performed
as a member of the Army National Guard or Air National Guard under state
control.

11.  Combat-Related Special Compensation (CRSC) is a special benefit for
certain disabled military retirees.  Congress enacted the benefit in the
Fiscal Year 2003 Defense Authorization Act.  To be eligible, the individual
must be a military retiree with at least 20 years of active duty or a
combination of active duty and Reserve points equaling 20 years of full-
time active duty (7,200 points) and either a Department of Veterans Affairs
disability rating of 10 percent or higher associated with award of the
Purple Heart; or a rating of 60 percent or higher for other illnesses or
injuries attributed to combat situations, combat-oriented training,
hazardous duty, or instrumentality of war.  The 2003 act was expanded by
the Fiscal Year 2004 Defense Authorization Act to include retirees with 20
years of qualifying service, who have a combined, combat-related disability
of 10 percent or more.  The benefit does not apply to Soldiers who were
retired by reason of physical disability who have less than 20 years of
qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board confirms that the applicant had
less than 5 years of active Federal service at the time he was discharged
in 1974.  While he may have had every intention of making the military a
career, and may cite his wounds and service in Vietnam as the basis for his
discharge, the fact remains that he did not have the required service to
qualify for retirement under Title 10 USC 3913.

2.  The applicant’s award of the Purple Heart contributed to the
affirmation of the 1975 recharacterization of his service and as such, the
applicant’s combat service has been recognized.  It does not, however,
warrant further recognition by granting the applicant the additional 16
plus years necessary to qualify for retirement in order that he may apply
for CRSC.

3.  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 that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 October 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 October 1977.  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

___WM__  ___EA __  ___BE __  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.




            ____Walter Morrison______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099432                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040722                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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