RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          27 January 2005
      DOCKET NUMBER:  AR20040007684


      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:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 general discharge (GD),
issued to him under the provisions of the Department of Defense (DOD)
Special Discharge Review Program (SDRP) on 24 May 1977 by the Army
Discharge Review Board (ADRB), be affirmed.

2.  The applicant states, in effect, that while he was in the Army, he was
assaulted twice and his life was threatened.  He left his unit absent
without leave (AWOL) to avoid being further assaulted.  In 1977, the ADRB
issued him a GD and he received a pension from the Veterans Administration
until 1 September 2004, at which time he was advised that he did not have a
GD under honorable conditions.

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

      a.  Separation Medical Examination dated 15 September 1970.


      b.  Letter, dated 16 September 1970, written to the Local Draft Board
by a medical physician, Spokane, Washington, that states the applicant was
involved in an automobile accident and that he suffered from posterior neck
pain.  The pain had gradually subsided, but he recently suffered from pain
in the interscapular area of his back.  The applicant also showed signs of
juvenile epiphysitis, or Scheuermann's disease (e.g., hunch back, or
humpback) of moderate severity.


      c.  Medical records dated between October 1970 and January 1971 that
shows the applicant was prescribed muscle relaxers and pain medication for
back pain while under the supervision of professional trained medical
physicians.


      d.  Mental status evaluation from the United States Army Medical
Department, Fort Ord, California, dated 26 April 1971.

      e.  Letter from the Office of the Brigade Chaplain, Fort Ord, dated 3
May 1971.


      f.  Letter from the Department of Veterans Affairs (DVA) Medical
Center, Long Beach, California, dated 18 November 1999.

      g.  Progress Notes from the DVA, Los Angeles, California, dated 10
May 2000.

      h.  DD Form 214 (Report of Separation from Active Duty).
      i.  Internet References containing information concerning various
drugs military physicians prescribed for his use for back pain.


      j.  Portion of an undated counseling record.


      k.  Self authored statement, dated 9 September 2004, in which the
applicant indicates that at age 6 he and his siblings were removed from
custody of the parent's because they were alcoholics and demonstrated
violent behavior. He was also separated from his siblings and moved around
between various State orphanages until age 18.  He was visited only once by
one of his siblings during this 12-year period.  His parents never visited.
 He felt afraid and thought that it was somehow his fault that his family
was split up and scattered around the country.  The environment in which he
was reared did not afford him the experiences and opportunities that were
necessary for him to adequately develop self-esteem and to mature into
adulthood.  As a result, he was not emotionally capable of serving his
country.  A sergeant assaulted him and threatened to blow his brains out.
He was afraid to tell anyone, he left his unit AWOL.  He received
nonjudicial punishment (NJP) when he returned.  In March 1971, he was
referred to a psychiatrist for a period of a few months.  He informed the
psychiatrist of his history and that he could not handle the violence that
he was forced to endure.  Initially, he was advised he would receive a GD,
if he did not "mess up" any further.  However, he was late for formation
and he was told he was being recommended for an undesirable discharge (UD).

      l.  Self authored statement, dated 10 October 2004, in which the
applicant indicates that, at the time of enlistment, he advised the
examining physician that he suffered from depression and he had experienced
a back injury during an automobile accident.  He never used drugs or
alcohol prior to enlisting in the military; however, while he was in the
basic training, he became addicted to the drugs that he was prescribed for
back and knee pain.  He has served some prison time that is directly
related to this drug addiction.  He believes that records will show that,
on the dates that he was written up for NJP, he was at the clinic trying to
determine why his back pain was getting worse.  He was constantly placed on
kitchen police (KP) and the detail caused his back pain to increase because
he was required to peel potatoes.  He suffers from posttraumatic stress
disorder, depression and mental illness, but he believes that some of these
records that would show this may have been destroyed over the years.

      m.  Two undated statements, undated, written by Soldiers who served
with the applicant.  The Soldiers state they witnessed red and blue marks
on the applicant's body and that the applicant told them that a sergeant at
the Correctional Custody Facility required him to do some exercises and
that the marks were the result of the sergeant slamming him down with force
when he was unable to complete the exercises.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 July 1971.  The application submitted in this case is dated 9 September
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 2 November 1970, the applicant enlisted in the Regular Army for 3
years and for Army Career Group 70, Administration.  He completed basic
combat training at Fort Lewis, Washington and on 25 January 1971, he was
assigned to Fort Ord California for completion of advanced individual
training.

4.  On 15 March 1971, NJP under the provisions of Article 15, Uniform Code
of Military Justice was imposed against the applicant for failure to go to
his appointed place of duty at the time prescribed on 12 and 13 March 1971.
 His punishment included an oral reprimand and a forfeiture of $30.00 pay
for
1 month.

5.  On 7 April 1971, NJP was imposed against the applicant for being AWOL
from his unit from 16 March to 1 April 1971.  His punishment included and a
forfeiture of $10.00 pay for 1 month, and 3 days of restriction and extra
duty.

6.  On 23 April 1971, the applicant was convicted by a summary court-
martial of being AWOL from 9-12 April 1971.  He was sentenced to a
forfeiture of $95.00 pay per month for 1 month.

7.  On 5 May 1971, NJP was imposed against the applicant for failure to go
to his appointed place of duty at the time prescribed on 1 May 1971.  His
punishment included reduction from pay grade E-2 to pay grade E-1 and 14
days of restriction and extra duty.

8.  On 26 April 1971, as part of the separation process, the applicant
underwent a psychiatric examination by a professionally trained
psychiatrist.  He was diagnosed to suffer from a schizoid personality with
features of emotional instability.  In March 1971, the applicant was seen
at Mental Hygiene Consultation Service, Fort Ord on an outpatient treatment
basis.  Psychological testing was administered to the applicant, to include
a complete and detailed social history.  The applicant's behavior was
clinically characterized by indecisiveness, unpredictability, helplessness,
depression, and withdrawal.  The applicant's symptomatology was complicated
by moderate drug use to include marijuana, barbiturates, psychedelics
(Lysergic acid diethylamide (LSD)) and mescaline.  The applicant's home
life was extremely fragmented and impoverished resulting in an extreme
deprivation in his interpersonal relationships and pronounced failure to
acquire meaningful and mature socialization skills.  As a child, he was
moved from one rigid, impersonal orphanage to another.  He and his siblings
were separated, cutting him off from even that measure of emotional
support.  Throughout the applicant's active service, his inability to deal
with the military environment steadily grew more marked.  He exhibited
symptoms of depression and withdrawal in addition to demonstrating lack of
judgment and impulse control.  He lacked the emotional and characterlogical
mechanisms to cope with a threatening and hostile environment.  He also
demonstrated a marked degree of confusion of thinking as severe anxiety.

9.  The examining psychiatrist believed the applicant's impairment was so
severe that it was extremely unlikely that he would be able to become a
part of a functioning military unit.  He was in no way equipped to adapt or
adjust within the military setting.  He was determined to be mentally
responsible, capable of distinguishing right from wrong and able to adhere
to the right.  The applicant was psychiatrically cleared for any
administrative measures deemed appropriate by his chain of command.  The
recommendation was expeditious separation.

10.  On 4 June 1971, the unit commander notified the applicant of his
intention to recommend that a board of officers be convened under the
provisions of Army Regulation 635-212, for the purpose of determining
whether he should be discharged for unfitness before the expiration of his
term of service.

11.  On 7 June 1971, the commander recommended that the applicant be
separated under the provisions of Army Regulation 635-212, due to
unfitness.  The commander stated that the applicant's poor performance was
characterized by his inconsistent pattern of failing to perform required
duties and his drug abuse.  The applicant received extensive counseling and
failed to show that he intended to improve.  The commander believed the
applicant's behavior was not due to incapacity to become a satisfactory
soldier within the meaning of unsuitability.  The commander believed the
applicant's behavior was willful and intentional and that there were no
grounds for any other disposition of the applicant.
12.  The commander also states that the applicant broke restriction on
      three
separate occasions.  The applicant stated that he would not perform
      required
week-end duties because he wanted to go to church all day on Saturday and
Sunday.  Yet, when he was asked why his uniform was unkept and his hair was


uncut he stated that he had no money because he had spent it all on drugs.
      The
commander believed the applicant had emotional problems and that he used
those problems as an excuse to commit acts that he understood were wrong.

13.  On 8 June 1971, legal counsel advised the applicant of the basis for
the contemplated separation action and its effects.  He was also advised of
the rights available to him.  The applicant requested a personal appearance
before a board of officers.

14.  On 23 June 1971, legal counsel again advised the applicant of the
basis for the contemplated separation action and its effects.  He was also
advised of the rights available to him.  The applicant authenticated a
statement in which he acknowledged he understood the ramifications of
receiving a UD.  He waived further representation by legal counsel and a
personal appearance before a board of officers.  He also declined to submit
a statement in his own behalf.

15.  On 17 June 1971, the brigade commander recommended approval with a UD.

16.  On 24 June 1971, competent authority approved the recommendation for
discharge and directed the issuance of a UD under the provisions of Army
Regulation 635-212, by reason of unfitness.

17.  On 24 May 1977, the ADRB upgraded the applicant’s UD to a GD under the
provisions of the DOD SDRP.

18.  The applicant's DD Form 214 shows he was discharged on 2 July 1971.
He had completed 7 months and 11 days of active military service and he had
20 days of lost time due to being AWOL.

19.  On 11 July 1978, the ADRB reviewed the applicant’s discharge upgrade
under the provisions of Public Law 95-126 and determined that the discharge
met all procedural requirements for separation processing and that the
rights of the applicant were protected throughout the discharge process.
The ADRB considered the applicant’s overall record of service, his AWOL
time, the court-martial, and the NJP’s that he had received and concluded
that he was properly and equitably discharged at the time of separation.
Therefore, the ADRB concluded that affirmation of the SDRP upgrade of 24
May 1977 was not warranted.  The ADRB voted not to affirm the applicant’s
discharge under uniform standards.

20.  Army Regulation 635-212, in effect at the time set forth the basic
authority for the separation of enlisted personnel who were found to be
unfit or unsuitable for military service.  The regulation further provided,
in pertinent part, that service members discharged for unfitness would
normally be furnished a UD unless circumstances warranted a general or
honorable discharge.

21.  On 4 April 1977, the DOD directed the Services to review all less than
fully honorable administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, entitled the DOD SDRP, required, in the
absence of compelling reasons to the contrary, that a discharge upgrade to
either honorable or general be issued in the case of any individual who had
either completed a normal tour of duty in Southeast Asia, been wounded in
action, been awarded a military decoration other than a service medal, had
received an honorable discharge from a previous period of service, or had a
record of satisfactory military service of 24 months prior to discharge.
Consideration of other factors, including possible personal problems which
may have contributed to the acts which led to the discharge and a record of
good citizenship since the time of discharge would also be considered upon
application by the individual.

22.  In October 1978, Public Law 95-126 was enacted.  This legislation
required that service Departments establish historically consistent,
uniform standards for discharge reviews.  Previously upgraded discharges
under the SDRP and other programs were reconsidered using the uniform
standards.  Those individuals whose SDRP upgrades were not affirmed upon
review under the historically consistent uniform standards were not
entitled to VA benefits, unless they had been entitled to such benefits
before their SDRP review.

23.  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 was properly separated in accordance with regulations
then in effect and there is no indication of procedural errors, which would
have jeopardized his rights.  The type of discharge directed and the reason
for discharge is appropriate considering the facts of the case.

2.  The applicant's entire record of service was taken into consideration
to include, his personal history and contentions.  His service was not
sufficient to warrant an affirmation of his discharge.

3.  The statements written by fellow Soldiers more than 33 years after the
fact, absent any other corroborating evidence, are not sufficient as a
basis for corroborating that the applicant went AWOL to avoid being further
assaulted.

4.  The DVA determines qualifications for benefits administered by that
agency.

5.  The applicant was prescribed pain medication and muscle relaxers for
back pain.  However, the evidence does not support that he became addicted
to these medications.

6.  It was the applicant's responsibility to inform his chain of command of
duties that caused him physical discomfort and to get permission from his
supervisor prior to leaving his appointed place of duty.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 July 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 10 July 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

__rjw___  __ecp___  __bkk___  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.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007684                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050127                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19710702                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |133.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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