RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 March 2005
      DOCKET NUMBER:  AR20040003367


      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:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 changed to a medical discharge.

2.  The applicant states, in effect, that he was given a psychiatric
examination in December 1970.  He further states that during his post-
service he was diagnosed with manic-depressive disorder and schizophrenic
(Post Traumatic Stress Disorder) PTSD.  He continues that he was in the
service when this occurred and had no medical treatment prior to his
service.

3.  The applicant provides a DD Form 214 (Report of Separation from Active
Duty) with an effective date of 21 September 1971; a U.S. Army Hospital,
Fort MacArthur, Mental Hygiene Examination Certificate dated 10 May 1971;
two Department of Veterans Affairs (VA), West Los Angeles Dual Diagnosis
Treatment Program (DDTP) letters with dates of 20 May 2003 and 25 July
2003; and a two page undated self-authored narrative letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 September 1971.  The application submitted in this case is
dated 15 June 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 2 April 1970 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 91A (Medical Corpsman).

4.  Records show that the applicant was absent without leave (AWOL) for the
period 12 September 1970 through 13 November 1970.



5.  On 4 March 1971, the applicant underwent a psychiatric examination and
was found to have a mixed character disorder with passive-aggressive and
inadequate features.  The examination showed that the applicant was
mentally responsible and able to distinguish right from wrong and to adhere
to the right.  The examination further showed that the applicant gave a
history of marked social inadaptability prior to and during service.

6.  It was also determined that the applicant used poor judgment, was not
committed to any productive goals, and was completely unmotivated for
further service.  The conclusion of the examination showed that there were
no disqualifying mental or physical defects sufficient to warrant
disposition through medical channels.

7.  On 5 March 1971, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be
at his prescribed place of duty.

8.  On 19 May 1971, the applicant accepted NJP under Article 15 of the UCMJ
for failure to be at his prescribed place of duty and for being
disrespectful in language to a Non-Commissioned Officer.

9.  A U.S. Army Medical Department Activities, Medical Company, Court-
Martial Charges memorandum dated 11 June 1971, shows the applicant's
physical profile was 111121B.

10.  A DD Form 458 (Charge Sheet), dated 21 June 1971, shows charges were
preferred against the applicant for being AWOL for the period 28 May 1971
through 1 June 1971, escaping from lawful custody, and unlawfully receiving
stolen property.

11.  On 21 June 1971, the applicant was notified by his commander that he
had the option to appear before a board of officers to determine whether he
should be discharged for unfitness under the provisions paragraph 6 of Army
Regulation
635-212 (Discharge-Unfitness and Unsuitability).

12.  The applicant was further advised by his commander that he could
exercise the right to request appointment of military counsel, submit a
statement on his behalf; or personally appear before a board of officers.

13.  On 22 June 1971, the unit commander recommended the applicant be
separated for unfitness based on the established pattern of shirking and
the willful neglect in the performance of even the most menial task under
the provisions of paragraph 6 of Army Regulation 635-212.
14.  On 12 July 1971, the applicant consulted with the Defense Counsel at
Fort MacArthur, California.  The applicant was advised of his rights and
the effect of a waiver of those rights.

15.  The applicant was also advised of the basis for his separation under
the provisions of Army Regulation 635-212.  The applicant indicated that he
consulted with appropriate counsel, that he waived consideration of his
case by a board of officers, that he did not provide statements on his own
behalf, and that he waived representation by military counsel.

16.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws and that he may
expect to encounter substantial prejudice in civilian life based on that
undesirable discharge.

17.  On 16 August 1971, the appropriate authority approved the applicant's
discharge under provisions of Army Regulation 635-212.

18.  A Standard Form 88 (Report of Medical History), dated 20 August 1971,
shows that the applicant was qualified for separation and had no
disqualifying mental disease or condition.

19.  A Standard Form 89 (Report Of Medical Examination), dated 20 August
1971, shows that the applicant was being separated and that his present
health was "good."

20.  On 21 September 1971, the applicant was discharged.  His DD Form 214
shows that he was discharged under the provisions of Army Regulation 635-
212 by reason of unfitness with an undesirable discharge and with a
characterization of service of under other than honorable conditions.  The
applicant completed      1 year, 3 months, and 16 days of creditable active
service with 63 days of lost time due to AWOL.

21.  On 12 August 1977, the applicant was notified by the Office of the
Adjutant General and the Adjutant General Center, Washington, D.C. that his
application for upgrade of his discharge under the Department of Defense,
Special Discharge Review Program (DOD-SDRP) was considered by the Army
Discharge Review Board (ADRB) and was approved on 20 July 1977.

22.  On 31 October 1978, the applicant was issued a DD Form 215 (Correction
to DD Form 214, Report of Separation from Active Duty) that corrected his
DD Form 214 by showing that his discharge under other than honorable
conditions was changed to (general) under honorable conditions.

23.  On 13 November 1978, the applicant was notified by the Office of the
Adjutant General and the Adjutant General Center that the previous
upgrading of his discharge had been re-reviewed by the ADRB as required by
Public Law
95-126.  As a result of the review, the ADRB determined that he did not
qualify for upgrading under the new uniform standards for discharge review.
 His upgraded discharge under the SDRP was not affirmed.

24.  The applicant submits a self-authored narrative, dated 25 June 2004.
He states, in effect, that he was on orders to go to Vietnam and prior to
his departure he was sent to see a psychiatrist in December of 1970.  The
psychiatrist recommended that he be medically discharged because of his
being diagnosed with a psychiatric disorder.  He continues that he was
waiting to be medically discharged when he was reassigned to Fort
MacArthur.

25.  While at Fort MacArthur he was unable to perform his military duties
due to his medical disorder and was relieved of his duties and given an
undesirable discharge.  The applicant continues that he tried to get his
discharge upgraded prior to his 1977 upgrade to general under honorable
conditions but was unable to because of his mental status.

26.  The applicant further states when his discharge was re-reviewed in
1978 he was not notified that his discharge was not affirmed and was not
given the chance to represent himself.  He states that it was not until
2003 when he applied for his VA benefits that he found out that his
discharge was "downgraded" (i.e., not affirmed).

27.  The applicant concluded that his "downgrade" was unjust because it was
done without his knowledge.  He states that he is presently being treated
for mental disorders in the VA DDTP which was not treated or diagnosed
while he was in the service.

28.  The applicant submits two VA DDTP letters from the program manager
admission notes that show the applicant was diagnosed with chronic paranoid
schizophrenia, ETOH [a database of historic alcohol-related research
information] dependence that was in remission, and Post Traumatic Stress
Disorder (PTSD) symptoms.



29.  The program manager states that the applicant explained to her that he
had experienced traumatic incidents when he was in the service.  He stated
that he was robbed and assaulted by two service members after basic
training, he had a stressful job as an ambulance driver (he transported
individuals who were severely ill or injured), and worked around dying
hospitalized patients.  Since then the applicant stated that he has had
nightmares about human disfiguration, illness, and waste since his
separation from the service.

30.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.

31.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-3 states that an enlisted Soldier may not be referred for, or
continue, physical disability processing when action has been started under
any regulatory provision which authorizes a characterization of service of
under other than honorable conditions. An exception may be made by the
general court-martial convening authority if the disability is the cause,
or a substantial contributing cause, of the misconduct that might result in
a discharge under other than honorable conditions or other circumstances
warrant disability processing instead of alternate administrative
separation.

32.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  Numerical designators "2" and "3" indicate that an individual
has a medical condition or physical defect which requires certain
restrictions in assignment within which the individual is physically
capable of performing military duty.

33.  The SDRP was based on a memorandum from Secretary of Defense Brown and
is often referred to as the “Carter Program.”  It mandated the upgrade of
individual cases in which the applicant met one of several specified
criteria and when the separation was not based on a specified compelling
reason to the contrary.  The ADRB had no discretion in such cases other
than to decide whether recharacterization to fully honorable as opposed to
a general discharge was warranted in a particular case.

34.  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.  One of the principal features of Public
Law 95-126 was 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.

35.  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 was given a psychiatric examination in
December of 1970.  There is no evidence and the applicant has not provided
evidence that shows he was given a psychiatric examination in December 1970
or documentation that he was recommended for medical separation.

2.   The applicant further contends that during his post-service he was
diagnosed with PTSD.  Records show that he was qualified for separation and
had no disqualifying mental disease or condition.  His Court-Martial
Charges Memorandum dated 11 June 1971 shows the applicant's physical
profile was 111121B.  There is no medical evidence of record that shows the
applicant had any illness or medical problem prior to his discharge on 21
September 1971.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time and that the ADRB
later upgraded the applicant's discharge from Undesirable to General Under
Honorable Conditions (although the upgrade was not later affirmed under
Public Law 95-126).

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 November 1978, 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 12 November 1981.  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

__ WTM_   __RLD __  __AU ___  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.




                                  ___ Mr. Walter T. Morrison_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |1 March 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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