RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 February 2004
         DOCKET NUMBER: AR2003090117


         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Lester Echols		Member
Mr. Robert J. Osborn, II		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his undesirable discharge (UD) be upgraded to a fully honorable discharge.

2. The applicant states, in essence, that in August 1965, he got married and in September 1965 he was assigned to Vietnam. His wife did not want him to be in the military, therefore, she kept leaving him and he kept leaving his unit in an absent without leave (AWOL) status to bring her back. He was young and confused after serving in Vietnam and believes that he was suffering from posttraumatic stress disorder (PTSD) at the time.

3. The applicant provides nothing in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests that the Board carefully and compassionately review the applicant's record for an upgrade of his discharge.

2. Counsel states that on 9 January 2004 a Veterans of Foreign Wars counsel reviewed the applicant's record and concurred with the applicant's contentions and requests that his discharge be upgraded.

3. Counsel provides no additional evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE :

1. The applicant is requesting correction of an error or injustice which occurred on 22 January 1969. The application submitted in this case is dated 14 April 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. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement Army Regulation (AR) 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR 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.



3. Prior to the period of enlistment under review, the applicant served honorably in the Armed Forces of the United States from 4 January 1962-15 March 1962. He also served honorably in the Regular Army (RA) from 16 March 1962-8 May 1964 until he was separated for immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for each prior period of service.

4. On 9 May 1964, while assigned to Korea, the applicant reenlisted in the RA for 6 years, his previous military occupational specialty (MOS) 635 (Auto Repairman) and in pay grade E-4. The applicant served in Korea from 26 June 1963 until he returned to the United States on 14 June 1964 and was assigned to Fort Hood, Texas.

5. The applicant was AWOL from his unit from 30 November-2 December 1964.
On 9 December 1964, he accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice for this period of AWOL. His punishment included the forfeiture of $15.00 pay for 1 month and 10 days of extra duty and restriction.

6. The applicant was assigned to Fort Bragg, North Carolina on 24 July 1965.
He left his unit in an AWOL status from 23-27 September 1965. On 28 September 1965, he accepted NJP for this period of AWOL. His punishment included reduction from pay grade E-5 to pay grade E-4 (suspended for 6 months).

7. The applicant was assigned to Vietnam from 30 September 1965 until he returned to the United States on 15 September 1966 and was assigned to Fort Hood, Texas. He was AWOL from his unit from 22 May-3 June 1967. On 8 June 1967, he accepted NJP for this period of AWOL. His punishment included reduction from pay grade E-5 to pay grade E-4 and the forfeiture of $120.00 pay per month for 2 months.

8. The applicant was AWOL from his unit from 10 June-11 July 1967. On
17 August 1967, the applicant accepted NJP for this period of AWOL. His punishment included 30 days of restriction (suspended for 30 days).

9. The applicant was AWOL from 6-18 October 1967; 20-23 October 1967;
25 October-26 November 1967 and from 30 November-25 December 1967. He was in pretrial confinement from 8-30 January 1968. On 30 January 1968, the applicant was convicted by a special court-martial (SPCM) of these periods of AWOL. He was sentenced to the forfeiture of $67.00 pay per month for 3 months, reduction from pay grade E-4 to pay grade E-3 (suspended) and 60 days of restriction (suspended).

10. The applicant was AWOL from 3 February-5 March 1968 and from 9 March-26 June 1968. On 18 July 1968, the applicant was convicted by a SPCM of these periods of AWOL. He was sentenced to reduction from pay grade E-4 to pay grade E-1, confinement at hard labor for 5 months, and the forfeiture of $90.00 pay per month for 5 months.

11. On 30 July 1968, the applicant was confined at the United States Army Retraining Brigade (USARB), Fort Riley, Kansas. On 21 September 1968, he was advanced to pay grade E-2. He was AWOL from his unit at Fort Riley from 4-21 October 1968. On 2 November 1968, he was convicted by a SPCM of this period of AWOL. He was sentenced to reduction from E-2 to pay grade E-1, confinement at hard labor for 6 months, and the forfeiture of $70.00 pay per month for 6 months.

12. On 12 December 1968, the applicant underwent a psychiatric evaluation by professionally trained personnel. It was determined the applicant had financial problems because he was not getting paid. He had been AWOL eleven times; and he indicated he would continue to go AWOL to be with his wife. The applicant's personality pattern worsened following marriage and with increased responsibility. His wife had two miscarriages and these things added to and exaggerated the applicant's basic disturbance. The applicant was experiencing terrifying dreams and his life was miserable. He was diagnosed to have a "hysterical personality, chronic, moderate, manifested by extreme nervousness altered states of consciousness during which he forgot his responsibility to the military and went AWOL." The examining official believed these states were preceded by intense fears and concerns-some of which were reality based and involved his wife and her mental health. The applicant's hysterical personality was determined not to be in the line of duty and existed prior to service. The examining official believed the applicant could not be rehabilitated to the extent that he could be an effective soldier and strongly recommended an administrative separation under the provisions of AR 635-212. The examining official also believed that the applicant's longstanding character and behavior disorder would exist permanently.

13. On an unknown date, the commander notified the applicant of his intent to recommend that a board of officers be convened under the provisions of AR
635-212, for the purpose of determining whether he should be discharged for unfitness before the expiration of his term of service.

14. On 27 December 1968, legal counsel advised the applicant of the basis for the contemplated separation action and its effects. He was also advised of the rights available to him. The applicant authenticated a statement in which he acknowledged he understood the ramifications of receiving a UD. He waived further representation by legal counsel and he waived consideration of his case, or a personal appearance before a board of officers. He also declined to submit a statement in his own behalf.

15. On 30 December 1968, the commander recommended that the applicant be separated under the provisions of AR 635-212, due to unfitness. The commander cited the applicant's AWOL offenses, NJP's, and his psychiatric evaluation as the bases for the recommendation. The commander also stated that the applicant's continued course of discreditable conduct outweighed consideration of discharge for a character and behavior disorder.

16. On 31 December 1968, the applicant's intermediate commander concurred with the recommendation and recommended that the requirement for further rehabilitation be waived.

17. On 10 January 1969, competent authority waived further rehabilitation, approved the recommendation for discharge and directed the issuance of a UD under the provisions of AR 635-212, by reason of unfitness.

18. The applicant's DD Form 214 shows that he was discharged on 22 January 1969. He had completed 3 years, 4 months and 28 days of active military service and he had 466 days of lost time due to being AWOL and in military confinement on the enlistment under review. He also had 2 years, 4 months and 5 days of prior service.

19. On 14 May 1975, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge

20. AR 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel who were found to be unfit or unsuitable for military service. The pertinent regulation further provided, in pertinent part,
that service members discharged for unfitness would be furnished a UD, unless circumstances warranted a general discharge or a honorable discharge.

21. AR 635-40, paragraph 2-2b, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.





DISCUSSION AND CONCLUSIONS :

1. The applicant was properly separated in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized his rights.

2. There is no evidence that shows the applicant was suffering from PTSD or that he had a medical condition that was either incurred in or aggravated by active military service. The applicant has provided no evidence to the contrary.

3. The type of discharge directed and the reason for discharge is appropriate considering the facts of the case.

4. Records show the applicant should have discovered the error or injustice now under consideration on 14 May 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 May 1978. 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ jhl ___ __ le ____ __ rjo ___ DENY APPLICATION


The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.



                           Joann Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090117
SUFFIX
RECON
DATE BOARDED	20040212
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19690122
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.