RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 May 2005
      DOCKET NUMBER:  AR20040006390


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he served in combat and it is an
injustice for him to continue to suffer from the adverse consequences of
his discharge.  He states that he had three honorable discharges and has
been a good citizen since his final discharge.  He also claims that he
suffered from medical and psychological problems that impaired his ability
to serve.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214, dated 28 June 1976; DD Form
214, dated 23 September 1960; Enlisted Qualification Record (DA Form 20);
Enlistment Record (DD Form 4); Combat Service Certificate; and Veterans
Center Intake Form.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 June 1976.  The application submitted in this case is
dated,
20 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’s record shows that he initially enlisted in the Regular
Army and entered active duty on 26 September 1957.  He was initially
trained in and awarded military occupational specialty (MOS) 053.10 (Radio
Teletype Operator).

4.  On 23 September 1960, the applicant was honorably separated after
completing 2 years, 11 months and 28 days of active military service.  The
DD Form 214 he was issued at the time shows that he held the permanent rank
of private/E-1 (PV1) on the date of his separation.  The separation
document lists no awards or decorations earned during this period of active
duty service.
5.  On 31 October 1961 the applicant reenlisted in the RA and reentered
active duty.  He continuously served on this enlistment until being
honorably discharged for the purpose of immediate reenlistment on 13 July
1964.  The DD Form 214 he was issued for this period of active duty service
shows that he held the rank of specialist four (SP4), which he had attained
on 10 August 1962 and that he was then serving in MOS 766.10 (Supply &
Parts Specialist).  The separation document also shows that he earned the
Sharpshooter Qualification Badge with Rifle Bar during this period of
active duty service.

6.  On 14 July 1964, the applicant reenlisted and began his active duty
service on the enlistment under review.  His DA Form 20 shows that he
served in the Republic of Vietnam (RVN) from 2 November 1967 through 1
November 1968.  During his RVN tour, he was assigned to Company A, 9th
Supply and Transportation Battalion, performing duties as a supply
specialist.

7.  The applicant’s disciplinary history during the enlistment under review
includes two special court-martial (SPCM) convictions and his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ).

8.  On 16 October 1964, a SPCM found the applicant guilty of violating
Article 86 of the UCMJ by being absent without leave (AWOL) from on or
about 21 August 1964 through on or about 29 September 1964.  The resultant
sentence included a forfeiture of $100.00 per month for three months.

9.  On 19 December 1966, a SPCM found the applicant guilty of violating
Article 86 of the UCMJ by being AWOL from on or about 19 September 1966
through on or about 21 October 1966.  The resultant sentence included
confinement at hard labor for six months, forfeiture of $64.00 per month
for six months and reduction to PV1.

10.  On 17 July 1967, the applicant accepted NJP for disobeying a lawful
order issued by his first sergeant.  His punishment for this offense
included a forfeiture of $23.00 and 14 days of extra duty and restriction.


11.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
medical treatment records indicating that the applicant suffered from a
disabling medical or psychological problem at the time of his discharge.

12.  On 10 June 1976, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 85 of
the UCMJ by being AWOL from on or about 6 March 1969 through on or about 3
June 1976.
13.  On 10 June 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.  In his
request for discharge, he acknowledged that he was guilty of the charge
against him or of a lesser included offense therein contained which also
authorizes the imposition of a bad conduct or dishonorable discharge.  He
further stated that under no circumstances did he desire further
rehabilitation, for he had no desire to perform further military service.
He also stated his understanding that if his discharge request was
approved, he could be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  He further
indicated that he understood that he could encounter substantial prejudice
in civilian life by reason of an UD.

14.  On 21 June 1966, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 28 June 1976,
the applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed 4 years, 8 months and 12 days of
creditable active military service and accrued 2651 days of time lost due
to AWOL and confinement during the enlistment under review.

15.  The applicant’s 28 June 1976 DD Form 214, as amended in a correction
to his DD Form 214 (DD Form 215), dated 15 March 2004, confirms he earned
the following awards during his active duty tenure:  Vietnam Service Medal
with 3 bronze service stars, Meritorious Unit Commendation, RCN Gallantry
Cross with Palm Unit Citation, RVN Campaign Medal with Device 1960, RVN
Civil Actions Honor Medal First Class Unit Citation, and National Defense
Service Medal.

16.  There is no indication the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

17.  The applicant provides a veterans center intake evaluation form, dated
21 October 2003, which outlines his military and developmental history, his
post military history, and the evaluator’s assessment.  This documents
lists the applicant’s issues and problems and the counselor concluded that
the applicant appeared to meet the criteria for a Post Traumatic Stress
Disorder (PTSD).

18.  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 UD.

19.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in
1980 with the publishing of the Diagnostic and Statistical Manual of Mental
Disorders (DSM).  The condition is described in the current DSM-IV, pages
424 through 429.  The Army used established standards and procedures for
determining fitness for entrance and retention and utilized those
procedures and standards in evaluating the applicant at the time of his
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded based
on his combat service, good post service conduct and that fact that he
suffered from a psychological problem that impaired his ability to serve,
along with the supporting documents he submitted, were carefully
considered.  However, none of these factors is sufficiently mitigating to
warrant an upgrade of his discharge at this late date.

2.  The Veterans Center evaluation provided by the applicant was also
carefully considered.  However, there is no evidence of record showing he
suffered from a disabling psychological problem at the time he committed
the misconduct that led to his discharge.  A specific diagnostic label
given an individual a decade or more after his discharge from the service
may change, however, this does not call into question the Army’s
application of the then existing fitness standards.  Therefore, this
evaluation is not sufficient to use as a basis to grant the requested
relief in this case.

3.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his UD
accurately reflects his service during the enlistment under review.  His
prior honorable service is adequately documented in the DD Forms 214 he was
issued for those periods of active duty.
4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1976.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
27 June 1979.  However, he failed to 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

___FE __  ___LDS__  ___MJF_  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.




            ____Fred Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006390                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/10                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/06/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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