RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 February 2005
      DOCKET NUMBER:  AR20040001593


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 that his general under honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he suffers from Post-Traumatic
Stress Disorder (PTSD) from serving in Vietnam.  The applicant continues
that he has reoccurring nightmares, mood swings, has Agent Orange disease,
and is unable to get help because of his general discharge.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 May 1969.  The application submitted in this case is dated 3
May 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 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 enlisted in the Regular Army on 26 July 1966 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 12B (Combat Construction
Specialist).

4.  On 13 January 1967, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) for the period from 14 December 1966 through
30 December 1966.

5.  On 13 January 1967, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period from 27 February 1967 through 28 February
1967.

6.  On 3 March 1967, the applicant arrived in Vietnam where he served as a
pioneer and combat demolition specialist with the 588th Engineer Battalion.



7.  On 13 July 1967, the applicant accepted NJP under Article 15, UCMJ for
operating a vehicle in a reckless manner.

8.  On 21 October 1967, the applicant accepted NJP under Article 15, UCMJ
for being drunk and disorderly in a public place.

9.  On 29 February 1968, the applicant departed Vietnam.

10.  On 5 December 1968, the applicant accepted NJP under Article 15, UCMJ
for failure to be at his prescribed place on duty.

11.  On 12 February 1969, the applicant was convicted by a summary court-
martial of being AWOL for the period from 16 December 1968 through
23 January 1969.  He was sentenced to confinement at hard labor for ten
days and to forfeit $70.00 for one month.

12.  On 7 March 1969, the applicant was convicted by a summary court-
martial of being AWOL for the period from 11 May 68 through 15 May 1968.
He was sentenced to be reduced to private/pay grade E-1, to be restricted
to the company area for 30 days, and to forfeit $50.00 for one month.

13.  A DD Form 458 (Charge Sheet), dated 10 April 1969, shows charges were
preferred against the applicant for being AWOL for the period 5 March 1969
through 7 April 1969.

14.  A Standard Form 88 (Report of Medical History), dated 15 April 1969,
shows that the applicant was qualified for separation and had no
disqualifying mental disease or condition.

15.  A Standard Form 89 (Report Of Medical Examination), dated 15 April
1969, shows that the applicant was being separated and that his present
health was "good."

16.  On 22 April 1969, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Under Other Than Honorable Conditions Discharge Certificate; that he may be
deprived of many or all Army benefits; that he may be ineligible for many
or all benefits administered by the Department of Veterans Affairs; and
that he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Conditions Discharge.  The applicant elected to submit a
statement but it is unavailable.

17.  On 2 May 1969, the appropriate authority approved the applicant's
request for discharge for the good of the service.  He directed that the
applicant be issued an undesirable discharge certificate and be reduced to
the lowest enlisted grade.  The applicant completed 2 years, 4 months, and
8 days of creditable active service of a 3-year enlistment with 160 days of
lost time due to AWOL and confinement.

18.  On 14 August 1972, the Army Discharge Review Board (ADRB) reviewed the
applicant’s request to upgrade his discharge.  The ADRB determined that the
discharge was proper and equitable and that the characterization of
discharge was proper as under other than honorable conditions.

19.  By an undated letter, the applicant was notified that his application
for upgrade of his discharge under the Department of Defense, Special
Discharge Review Program (DOD-SDRP) was considered by the ADRB and was
approved on 15 June 1977.

20.  On 10 July 1978, the ADRB reconsidered the applicant's case and
affirmed the applicant's DOD-SDRP discharge upgrade.

21.  Records show that on 26 August 1978, the applicant was issued a DD
Form 215 (Correction to DD Form 214, Report of Separation from Active Duty)
which corrected his DD Form 214 by showing that his discharge under other
than honorable conditions was changed to (general) under honorable
conditions.

22.  On 2 October 1980, the ADRB considered the applicant’s request to
upgrade his discharge to honorable.  The ADRB determined that the discharge
was proper and equitable and that the characterization of discharge was
proper as (general) under honorable conditions.

23.  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.

24.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

25.  The Special Discharge Review Program, also known as the Carter
Program, was implemented in April 1977.  Eligibility for the program was
restricted to individuals discharged with either an undesirable or a
general discharge between 9 August 1964 and 28 March 1973 inclusive.
Individuals who received an undesirable discharge during the Vietnam era
would have their discharges upgraded if they met any one of the following
criteria:  wounded in combat in Vietnam; received a military decoration
other than a service medal; successfully completed an assignment in
Southeast Asia or in the Western Pacific in support of operations in
Southeast Asia; completed alternate service or were excused from completing
alternate service; or received an honorable discharge from a previous tour
of military service.

26.  Public Law 95-126 provided in pertinent part for a “Relook Program.”
All cases upgraded from under other than honorable conditions under the
SDRP or extension to PP 4313 had to be relooked and affirmed or not
affirmed under uniform standards.  Two of the principal features of Public
Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized
absence to other reasons (e.g., conscientious objector, deserters) for
discharge which act as a specific bar to eligibility for Veterans
Administration (VA) benefits.  Such absence must have been the basis for
discharge under other than honorable conditions and is computed without
regard to expiration term of service; and (2) prospective disqualification
for receipt of VA benefits for those originally qualifying as a result of
upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless
an eligibility determination is made under the published uniform standards
and procedures.

27.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is suffering from PTSD after serving in
Vietnam.  He continues that he has reoccurring nightmares, mood swings, has
Agent Orange disease, and is unable to get help because of his general
discharge.  However, records show the ADRB upgraded his discharge from
under other than honorable conditions to under honorable conditions under
the provisions of the DOD-SDRP and the upgrade was affirmed.  Since he had
less than 180 days of continuous unauthorized absence, it appears the
upgrade and the affirmation made the applicant eligible to receive VA
medical benefits to treat service related medical conditions.  The Army has
no jurisdiction over the VA, however, which operates under its own policies
and procedures.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

4.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

5.  The applicant's records show that he was convicted by two summary
special
courts-martial, received five Article 15s, had five instances of AWOL, and
had 160 days of lost time due to AWOL and confinement.  Based on these
facts, the applicant’s service clearly did not meet the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 October 1980, the date of the last
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 1 October 1983.  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

__MKP __  __SLP__   __SAP__  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.




                                  __ Ms. Margaret K. Patterson
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001593                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |8 February 2005                         |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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