RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           25 November 2003
      DOCKET NUMBER:   AR2003088478


      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond V. O’Connor, Jr.      |     |Chairperson          |
|     |Ms. Lana E. McGlynn               |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 his discharge be upgraded to honorable.

2.  The applicant states that he had not had any nonjudicial punishment
(NJP) under the Article 15, Uniform Code of Military Justice (UCMJ) nor had
he been convicted by court-martial.  He states that he was reprimanded and
returned to duty for his period of being absent without leave (AWOL).   He
believes he was illegally discharged without due process and that a Vietnam
combat veteran who is suffering from post-traumatic stress disorder (PTSD)
should be treated better.

3.  The applicant states that following his return from Vietnam he was
depressed.  He felt alienate and angry and that he did not receive any
medical attention for these problems.

4.  He cites 12 January 2003 as the date of discovery and indicates that
the discharge was illegal and it is the responsibility of the Army to
correct this.

5.  The applicant provides no documentation or evidence other than his
personal statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice, which occurred
on 28 June 1973.  The application submitted in this case is dated 3 March
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 the
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 entered active duty on 5 April 1970 and served in Vietnam
from 26 February 1971 through 29 January 1972.

4.  His record shows that he was absent without leave (AWOL) five times:
1 October 1970 through 4 December 1970, 5 July 1972 through 11 July 1972,
14 December 1972 through 15 January 1973, 19 March 1973 through 26 April
1973, and 7 May 1973 through 13 May 1973.

5.  On 17 December 1970 the applicant received NJP for the 1 October 1970
through 4 December 1970 period of AWOL.
6.  On 17 January 1973 he received a second NJP for the 14 December 1972
through 15 January 1973 period of AWOL.

7.  The record shows that his last two periods of AWOL ended due to
civilian apprehension.

8.   On 17 May 1973 court-martial charges were preferred for the last two
periods of AWOL.

9.  On 29 May 1973, after consulting with counsel and being advised of his
rights and options, the applicant submitted a formal request for discharge
for the good of the service in lieu of trial by court-martial under the
provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had
been advised of and understood his rights under the UCMJ, that he was
guilty of the stipulated offenses or lesser included charges, that he could
be discharged under other than honorable conditions and receive an
Undesirable Discharge (UD) which would deprive him of many or all of his
benefits as a veteran, that he could expect to experience substantial
prejudice in civilian life if he received an UD, and that there is no
automatic upgrading or review of a less than honorable discharge.

10.  The separation authority approved the applicant's request and directed
that he be separated with an undesirable discharge.

11.  On 28 June 1973 the applicant was separated under the provisions of
Army Regulation 635-200, chapter 10.  He had served 2 years, 9 months and
23 days creditable service and had 152 days lost time due to being AWOL and
21 days due to confinement.

12.  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 under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  His service is appropriately
characterized by his overall record.

2.  The applicant’s assertion that he had never received punishment under
the provision of Article 15 UCMJ is false.

3.  Further, the only reason he was not tried by a court-martial conviction
was due to his voluntary election to be administratively discharged under
Army Regulation 635-200, chapter 10.

4.  Absent convincing evidence that, at the time of the discharge or the
behavior that led to the discharge, the applicant was so impaired by
psychiatric, psychological, mental, or emotional problems that he could not
both tell right from wrong and adhere to the right, the PTSD issue does
nothing to demonstrate an error or an injustice in the discharge.

5.  Records show that the applicant should have discovered the injustice
now under consideration on 28 June 1973.  Thus, the applicant should have
filed an application with the ABCMR within 3 years from 28 June 1973.
However, the applicant did not do so and has not provided a compelling
explanation justifying failure to file within the       3-year statute of
limitations.


BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RVO___  __LEM___  __YM___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this
case are insufficient to warrant the relief requested or to excuse the
applicant’s failure to file this application with the ABCMR within the 3-
year statute of limitations.  Therefore, the Board does not excuse the
applicant’s failure to timely file within the time proscribed by law and
this application is denied for that reason.




            _Raymond V. O’Connor, Jr._
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003088478                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20031125                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7                                   |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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