RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          25 January 2005
      DOCKET NUMBER:  AR20040000661


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderhom             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      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 under other than honorable
conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he has experienced symptoms
associated with posttraumatic stress disorder (PTSD) since he left the
military.  He is currently being treated for PTSD and he believes the PTSD
is service related.

3.  The applicant provides in support of his request a:

      a.  DD Form 214 (Certificate of Release or Discharge from Active
Duty).

      b.  Separation Orders Number 345-42, dated 11 December 1979, from
Headquarters, United States Army Field Artillery Center, Fort Sill,
Oklahoma.

      c.  Neuropsychological Evaluation, from Clinical and Forensic
Neuropsychology, Albuquerque, New Mexico, dated 11 July 2000 shows the
applicant was evaluated on 26 June 2000.  During the evaluation process, he
stated that he sustained a concussion with approximately 15 minutes loss of
consciousness many years ago, as a result of a fight and he had been
nervous and irritable since that time.  He also stated that he developed
physiological symptoms, including dizziness and fainting approximately 5
years ago.  He recently began taking the antidepressant Paxil.  The
examining clinical neuropsychologist concluded the applicant's cognitive
problems are likely related more to emotional factors and that his pattern
of behavioral and emotional difficulty is likely related to early childhood
and family influences.  He was referred to counseling to deal with his
chronic adjustment problems.

      d.  Letter, dated 12 December 2003, from Presbyterian Family
Healthcare, Albuquerque, New Mexico, which shows the applicant was
prescribed Lexapro and Alprazolam for chronic anxiety disorder and anger
management.

      e.  Letter from the Social Security Administration, dated 17 March
2004, which shows the applicant receives $823.00 in monthly benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 December 1979.  The application submitted in this case is dated 19 April
2004.

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.  On 29 June 1977, the applicant voluntarily enlisted in the New Mexico
Army National Guard (NMARNG) and as a Reserve of the Army for a period of 6
years.

4.  The applicant was ordered to active duty for training from August to
November 1977 to complete training in military occupational specialty (MOS)
64C (Motor Transport Operator).  He completed the training requirements,
was honorably separated, and he returned to the NMARNG to complete his
service obligation.

5.  In 1978, the applicant failed to attend eight unit-training assemblies.
 The eight unexcused absences during a 12-month period were considered
unsatisfactory participation.  Effective November 1978, the applicant was
involuntarily ordered to active duty from the USAR for a period of 20
months and 19 days.  He was assigned to Fort Bliss, Texas.  On 13 November
1978, he was further assigned to Germany.

6.  The applicant returned to the United States in an ordinary leave status
and went into an absent without leave (AWOL) status when he failed to
return to his unit from 1 September to 10 October 1979.

7.  On 30 October 1979, court-martial charges were preferred against him
for the above period of AWOL.  On the same date, the applicant consulted
with legal counsel and requested discharge under the provisions of chapter
10, Army Regulation 635-200 for the good of the service in lieu of court-
martial.  He was advised that he could receive a UOTHC discharge.  He
authenticated a statement with his signature acknowledging that he
understood the ramifications and effects of receiving a UOTHC discharge.
He indicated in a statement submitted in his own behalf that he did not
desire a separation physical examination.

8.  On, 19 November 1979, the applicant's commander recommended approval
with the issuance of a UOTHC discharge.  The commander stated that the
applicant had become disillusioned with the military and that further
retention of the applicant would not be in the interest of the Army.



9.  On 28 November 1979, the approval authority approved the applicant's
request for discharge under the provisions of chapter 10 and directed that
he be separated with a UOTHC discharge in pay grade E-1, the highest pay
grade that he achieved was pay grade E-3.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that, on 5 December 1979, he was separated under the
provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge
for conduct triable by court-martial.  He had completed 11 months and
25 days of active military service and he had no recorded lost time.

11.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitations.

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
submit a request for discharge for the good of the service in lieu of
trial by court-martial.  The request may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Although an honorable or general discharge was authorized, a UOTHC
discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

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

2.  There is nothing in the available record and the applicant has provided
nothing that supports he was suffering from PTSD when he was separated from
the military.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
4 December 1982.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jea___  __lmd___  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000661                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19791205                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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