RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 June 2005
      DOCKET NUMBER:  AR20040006150


      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. Ronald DeNoia                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr.  Michael J. Flynn             |     |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 "upgraded discharge be reinstated" and
that his social security number be corrected.

2.  The applicant states that his "original (under other than honorable
conditions) discharge was upgraded (to under honorable conditions) by a
board of officers on 13 Jun 1977" and that he "was sent a DD Form 215
(Correction to DD Form 214, Report of Separation from Active Duty) in 2004
showing that it was changed."

3.  The applicant also states that his absence without leave (AWOL) and
subsequent discharge was the result of his brother's suicide and his
experiences in Vietnam, which he now believes resulted in Post Traumatic
Stress Disorder (PTSD)

4.  The applicant further states that he believed that he was eligible to
receive Department of Veterans Affairs (DVA) benefits based on the upgraded
discharge and that the DVA denied his claim based on his under other than
honorable conditions discharge.

5.  The applicant provides copies of National Personnel Records Center
letters, dated 16 May 2003 and 22 July 2004; a copy of DD Form 215
(Correction to DD Form 214 Report of Separation from Active Duty), dated 13
July 1978; a copy of DD Form 2067 (Case Report and Directive, Discharge
Review Board, Statement of Findings, Conclusions and Reasons), dated 13
June 1977; a copy of DD Form 214 (Report of Separation from Active Duty),
with an effective date of 3 July 1969; and a copy of Department of Veterans
Affairs letter, dated 9 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 June 1978, the date that his upgraded discharge was not
affirmed by the Army Discharge Review Board.  The application submitted in
this case is dated 18 August 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 also requested correction of the social security number
on his DD Form 214.  Records show that this correction was made on
18 August 2004, by the Army Review Boards Agency Support Division, St.
Louis, Missouri.  Records show the applicant was notified by separate
correspondence of this correction and was provided with a DD Form 215.
Therefore, this issue will not be discussed further in these proceedings.

4.  The applicant entered active duty on 17 November 1965.  Upon completion
of basic training and advanced individual training he was awarded the
military Occupational Specialty (MOS) 11B (Light Weapons Infantryman).  The
applicant served with the Headquarters and Headquarters Troop, 1st
Squadron, 10th Cavalry of the 4th Infantry Division in Vietnam.

5.  Headquarters, 16th Armor Group, Fort Knox, Kentucky, Special Court-
Martial Order Number 167, dated 20 November 1967, shows the applicant was
convicted for being AWOL during the period 19 October 1967 through
30 October 1967.  His sentence consisted of forfeiture of $85.00 per month
for four months, confinement at hard labor for the period of four months,
and reduction in rank to private/pay grade E-1.  This sentence was adjudged
on 15 November 1967.

6.  On 2 May 1968, nonjudicial punishment was imposed against the applicant
for being AWOL during the period 27 April 1968 through 1 May 1968.  His
punishment consisted of reduction to the rank of private/pay grade E-1 and
correctional custody for a period of seven days.

7.  A DD Form 458 (Charge Sheet), dated 19 June 1969, shows that the
applicant was charged with two specifications of AWOL for the periods 22
May 1968 through 26 June 1968 and 27 June 1968 through 12 May 1969.

8.  On 26 May 1969, the applicant submitted a request for discharge for the
good of the service under the provision of chapter 10 of Army Regulation
635-200.  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate, that he may be deprived of many or all
Army benefits, 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 a
discharge under other than honorable conditions.  Additionally, he elected
not to submit a statement in his own behalf.
9.  The applicant's DD Form 214, with an effective date of 3 July 1969,
shows the applicant was separated under the provisions of paragraph 10-5 of
Army Regulation 635-200, and furnished an Undesirable Discharge
Certificate.  He had served 2 years, 6 months, and 28 days of active
service with 384 days of lost time due to AWOL and confinement.

10.  On 4 May 1977, the applicant applied to the ADRB for an upgrade of his
undesirable discharge to a general discharge.  The ADRB panel reviewed his
case on 13 June 1977, and determined that the applicant met the criteria of
the DOD Special Discharge Review Program (SDRP).  The ADRB panel indicated
that the applicant's possible personal problems may have contributed to the
acts of misconduct which led to his discharge.  The ADRB voted unanimously
to upgrade his discharge to a general discharge under the SDRP.

11.  A letter from the Department of the Army, Office of the Adjutant
General and the Adjutant General Center, Washington D.C., dated 18 July
1977, informed the applicant that his under other than honorable discharge
had been upgraded to a general (under honorable conditions) discharge,
effective 13 June 1977, under the SDRP.  The applicant was furnished with a
new separation document at that time.

12.  On 30 June 1978, the applicant was informed by a letter from the
Military Review Boards Agency, Washington D.C. that the ADRB did not affirm
the applicant's discharge upgrade.  The applicant was informed in a letter,
dated 24 July 1978, from The Adjutant General of the Army that after a re-
review by the ADRB, the board determined that he did not qualify for
upgrading under the new uniform standards for discharge review.

13.  In his application the applicant stated that at the time of his AWOL
he experienced the death of his brother, by suicide, and the fact he had
just returned from Vietnam.  He further stated that he believes that these
circumstances caused him to suffer from PTSD which resulted in his
undesirable discharge.

14.  The applicant's records do not contain a separation physical or other
medical evidence to show he suffered from or was treated for PTSD while on
active duty. The applicant has not submitted any evidence to show he has
been diagnosed with or treated for PTSD.

15.  Records show the applicant's tour of duty in Vietnam was during the
period 7 September 1966 through 28 May 1967.  Records also show the
applicant had four periods of AWOL ranging from six months to two years
after he returned from Vietnam.
16.  The applicant has not submitted any evidence to show the death of his
brother or the circumstances surrounding it.

17.  In October 1978, Public Law 95-126 was enacted.  This legislation
required the service departments to establish historically consistent,
uniform standards for discharge reviews.  Reconsideration using these
uniform standards was required for all discharges previously upgraded under
the SDRP and certain other programs were required.  Individuals whose SDRP
upgrades were not affirmed upon review under these historically consistent
uniform standards were not entitled to DVA benefits, unless they had been
entitled to such benefits before their SDRP review.

18.  Army Regulation 635-200 (Personnel Separations) 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.

19.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

20.  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 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge (under honorable
conditions) should be reinstated so he may be eligible for DVA benefits.

2.  The applicant’s administrative separation was in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The discharge proceedings were conducted in
accordance with law and regulations applicable at the time and the
character of the discharge is commensurate with the applicant's overall
record of military service.  The type of discharge and reason for
separation were appropriate considering all the facts of the case.

3.  The ADRB's initial review of the applicant's discharge was under the
provisions of the SDRP.  The ADRB voted unanimously to upgrade the
applicant's discharge to a general (under honorable conditions) discharge
and the proceedings were conducted in accordance with law and procedures
under the SDRP.

4.  The ADRB's second review of the applicant's discharge was to determine
if the discharge should be affirmed.  The ADRB voted to not affirm the
applicant's general discharge.

5.  There is no evidence and the applicant has not provided evidence to
show that the ADRB's second decision was improper or flawed.  The ADRB's
decision to not affirm the applicant's general discharge was consistent
with all applicable laws and regulations.

6.  The applicant contends that PTSD caused him to be AWOL, which resulted
in his undesirable discharge.  There is no evidence to support his
contention that he suffered from PTSD during or after his military service.
 There is also no evidence that the death of his brother caused the
applicant's misconduct.  Therefore, there is no basis to upgrade his
discharge.

7.  The evidence of record clearly shows that the applicant had an
extensive disciplinary record.  Notwithstanding the original determination
by the ADRB, the official record shows that his service was not
satisfactory and that his general discharge should not be affirmed.

8.  After a review of the applicant’s record of service, it is evident that
his quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, he is not entitled to
an honorable discharge.
9.  The ABCMR does not grant requests for affirmation of discharges solely
for the purpose of making the applicant eligible for benefits.  In order to
justify correction of a military record the applicant must show or it must
otherwise satisfactorily appear, that the record is in error or unjust.
The applicant did not submit any evidence that would satisfy this
requirement.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 30 June 1978.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 29 June 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MJF__  __TAP___  ___RLD_  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.




                                  ____R. L. Duecaster_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006150                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050623                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ILO Court Martial                       |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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