RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 August 2005
      DOCKET NUMBER:  AR20040007688


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 under the provisions of the Department of Defense (DOD) Special
Discharge Review Program (SDRP) by the Army Discharge Review Board (ADRB)
on
31 May 1977 be corrected to show he was separated due to a physical
disability.

2.  The applicant states, in effect, that he was lied to and tricked into
signing the undesirable discharge (UD) that he received on 9 March 1970
while under the influence of a vast amount of thorazine.  He states he was
never informed the GD that he was issued under the provisions of the DOD
SDRP was unjustly overturned.  The applicant also states in separate
correspondence written to the Board that he is 55 years of age, homeless
and severely affected by posttraumatic stress disorder (PTSD).  He was
young when he went to Vietnam and he had not developed mentally to be able
to sustain the pressure and events associated with a war.  As a result of
terrifying combat-related events, he was hospitalized and medicated to the
point that he was a walking zombie and does not remember being medically
evacuated from one hospital to the next.

3.  Additionally, the applicant states, in effect, that:

      a.  Clemency is warranted because it is an injustice for him to
continue to suffer the adverse consequences of a UD.  Under current
standards, he would not have received the UD.


      b.  His average conduct and efficiency ratings/behavior and
proficiency marks were very good and he received awards and decorations.


      c.  He served in combat and he was mentally wounded in action.

      d.  He committed isolated or minor offenses.

      e.  His ability to serve was impaired by his youth and immaturity; due
to a deprived background and marital and family problems.

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

      a.  Portion of his separation documents (Request for Discharge for the
Good of the Service).
b.  Statement that was written by his son's mother which indicates that,
prior to Vietnam, the applicant was admired and a joy to be around;
however, when he returned home, he was depressed, anti-social and very
unhappy.  He often relived the terrifying events that he experienced in
Vietnam.  He had changed to the point that she was afraid.  Therefore, she
took their son and moved to California and left behind the father of her
child and the man that she loved.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
9 March 1970.  The application submitted in this case is dated 25 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 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 20 June1968, at age 19, the applicant enlisted in the Regular Army
for
2 years and training in military occupational specialty (MOS) 11H (Infantry
Direct Fire Crewman).

4.  On 1 October 1968, nonjudicial punishment (NJP), under the provisions
of Article 15, Uniform Code of Military Justice, was imposed against the
applicant for treating a noncommissioned officer (NCO) with contempt (by
facing him in a belligerent manner with his hands on his hips and throwing
his steel helmet to the floor).  His punishment included a forfeiture of
$14.00 pay for 1 month and
14 days of extra duty and restriction.

5.  On 25 October 1968, the applicant completed the training requirements
and he was awarded MOS 11H.  On 17 November 1968, the applicant was
assigned to Vietnam with duties in his MOS.

6.  On 30 March 1969, the applicant was convicted by a special court-
martial of disobeying a lawful command given by a commissioned officer on
20 March 1969.  His sentence included a reduction from pay grade E-4 to pay
grade
E-3 and a forfeiture of $70.00 pay for 6 months.

7.  The applicant left his unit in Vietnam in an absent without leave
(AWOL) status (in country) from 2 May to 12 August 1969.  Both the
applicant's conduct and efficiency were rated excellent prior to this
incident.

8.  A Report of Sanity Board Evaluation, dated 3 November 1969, shows the
applicant was referred by defense counsel for evaluation in connection with
judicial proceedings on 1 November 1969 while still in Vietnam.  The report
also shows the Stockade Mental Health Consultation Service, Vietnam started
monitoring the applicant on 26 August 1969.  During the initial evaluation
process, the applicant stated that he went AWOL because he did not like
anyone in his unit and he wanted to be alone.  While AWOL, he lived with a
Vietnamese girl and stayed high on various drugs to include opium (most of
the time), marijuana, abesital and binoctal, (Quaalude binoctal, an
addictive drug consisting of Amytal and Seconal).  He also stated that he
wrote checks to provide for his needs, to include drugs, and he did not
consider that his checking account was overdrawn.  Upon return to his unit,
all of his things had been moved to the supply room.  The supply personnel
were new and apparently would not release his things.  Therefore, he went
to the orderly room and got a 45. caliber pistol with the intention of
getting his things until a lieutenant stopped him and a struggle ensued.
The applicant also stated that he had experienced a history of family and
personal problems.

9.  The Sanity Board Evaluation shows the applicant was found to have a
history of auditory and visual hallucinations.  His memory was intact;
judgment was poor and insight was lacking.  His diagnosis was depressive
reaction; chronic; severe, manifested by mood; psychomotor retardation and
history of loneliness and preference to be alone.  His chronic severe
depressive state was believed to have been of long standing duration (since
early childhood) due to a lack of parental presence.  The sanity board
believed these factors may have been the bases for his early drinking, drug
use, and more recent hallucinations.  It was determined the applicant could
not tell right from wrong, could not adhere to the right and was not
mentally competent to cooperate in his own defense.  The recommendation was
that the charges be dropped to facilitate an expeditious discharge and that
the applicant be separated through medical channels.

10.  The applicant was medically evacuated to Japan enroute to Fort
Campbell, Kentucky.

11.  On 25 November 1969, the applicant was reevaluated at the United
States Army Hospital, Fort Campbell.  The examining psychiatrist concluded
the applicant suffered from an anti-social personality disorder, manifested
by a long history of antisocial behavior, including abuse of drugs,
juvenile delinquency, and inability to conform to established regulations.
The examining psychiatrist also concluded that, while in confinement, the
applicant had developed a psychosis
from which he had fully recovered.  The recommendation was expeditious
separation under Army Regulation 635-212, as unsuitable.  However, the
decision rested with his chain of command.  He was released to the Medical
Holding Detachment, Fort Campbell.

12.  On 14 January 1970, the Chief of the Department of Psychiatry reviewed
the applicant's previous psychiatric evaluations and determined he was
probably transiently psychotic and unable to stand trial when seen on 3
November 1969, while in Vietnam.  However, he was mentally responsible for
his actions prior to being arrested.  At that present time he was deemed
mentally competent and mentally responsible for the charges pending against
him.

13.  On 9 February 1970, the applicant assaulted another Soldier while in
the Medical Holding Detachment.  On 13 February 1970, the applicant was put
in pretrial confinement with eight charges pending against him.  One
incident involved five charges.  He was charged with the period of AWOL
from 2 May to
12 August 1969; disobeying a lawful order; using disrespectful language
towards a master sergeant; communicating a threat to injure a master
sergeant; using disrespectful language towards a captain; and communicating
a threat to injure a captain on 28 November 1969.  He was also charged with
assaulting another Soldier and stealing a wrist watch, valued at $79.00,
the property of another Soldier, on 9 February 1970.

14.  On 16 February 1970, while in the stockade, the applicant tore up a
commode, armed himself with a piece of pipe and threatened to hurt anyone
who tried to subdue him.  A priest persuaded him to give up and he was
admitted to the psychiatric ward for observation and treatment after he
claimed he was experiencing auditory and visual hallucinations.  Over a
period of 3 days, the applicant was closely observed by a psychiatrist and
he failed to show any symptoms of psychosis.  He was not found to be
psychotic.

15.  On 19 February 1970, the applicant was determined to be mentally
responsible for the offenses for which he was charged.  The examining
psychiatrist believed he was also mentally responsible for the offenses
that he committed while in Vietnam, but was unable to stand trial while in
Vietnam.  He was cleared for administrative disposition.  The
recommendation was that he be separated as unsuitable.
16.  On 25 February 1970, the applicant consulted with legal counsel and
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.  He
was advised that he could receive a UD.  He acknowledged that he understood
the ramifications of receiving a UD and he declined to submit a statement
in his own behalf.

17.  On 27 February 1970, both the applicant's commander and intermediate
commander recommended approval of his request for discharge under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service with a UD.  On 3 March 1970 the separation authority approved the
recommendation and directed that the applicant be separated with a UD.

18.  On 4 March 1970, the applicant underwent a medical examination that
also determined he was qualified for separation.  On 9 March 1970, the
applicant authenticated a statement of medical condition in which he
indicated he underwent a separation medical examination more than 3
working days prior to departure from his place of separation and that
there had been no change in his medical condition.

19.  On 9 March 1970, the applicant was discharged with a UD for the good
of the service, under the provisions of chapter 10, Army Regulation 635-
200.  He had completed 1 year, 5 months and 7 days of active military
service and he had 103 days of lost time, due to being AWOL.  His DD Form
214 shows no awards; however, he is authorized award of the National
Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal and
the Vietnam Gallantry Cross Unit Citation with Palm.

20.  On 31 May 1977, the Army Discharge Review Board (ADRB) upgraded the
applicant’s UD to a GD under the provisions of the DOD SDRP.

21.  On 21 November 1978, the ADRB reviewed the applicant’s discharge
upgrade under the provisions of Public Law 95-126 and determined that the
affirmation of the SDRP upgrade of 31 May 1977 was not warranted.  The ADRB
voted not to affirm the applicant’s discharge under uniform standards.

22.  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.
At the time of the applicant's separation, a UD was appropriate.

23.  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 be
either honorable or general 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.

24.  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 Veterans Administration benefits, unless they had been entitled
to such benefits before their SDRP review.

25.  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 (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 available evidence indicates that the applicant's discharge met the
procedural requirements for separation processing and that his rights were
protected throughout the discharge process.

2.  In addition, the available evidence does not demonstrate the applicant
had a medically unfitting disability which required physical disability
processing.  Therefore, there is no basis for a physical disability
separation.

3.  Stealing and assaulting another Soldier are serious offenses.  Given
the applicant’s overall record of service, to include his offenses,
affirmation of the SDRP upgrade of 31 May 1977 is not warranted.

4.  The available evidence indicates the applicant met entrance
qualification standards to include age and there is no evidence that he was
any less mature than other Soldiers of the same age who successfully
completed military service obligation.

5.  The available evidence shows the applicant's mental condition existed
prior to enlistment and there is no evidence that he was ever mentally or
physically wounded as a result of hostile action or that he was suffering
from posttraumatic stress disorder at the time of separation.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 November 1978.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 20 November 1981.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

__kan___  __wdp___  __mjnt__  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007688                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19700309                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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