RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 May 2005
      DOCKET NUMBER:  AR20040008266


      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. 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 that his undesirable discharge be upgraded to a
general (under honorable conditions) or a medical discharge.

2.  The applicant states, in effect, that he is currently in treatment for
depression and post-traumatic stress disorder from his Vietnam experience.
He states that he had extreme hardship at the time of his request for
discharge.

3.  The applicant further states that he was young and immature at the time
of his separation and was mentally disturbed.  He states that the reason he
went absent without leave (AWOL) and requested to be separated from the
service was because he needed to be near home to take care of his family
problems.  He continues that his mother had a nervous breakdown and his
wife was suffering from mental and drug problems.  He further states that
he fabricated having a drug problem but at the time it was the only choice
he had on getting out of the service.

4.  The applicant provides an undated self-authored narrative; an undated
news paper article "GI, Due to Return to Vietnam, Seeks Missing Wife;" a
United States Air Force Certificate of Training, dated 7 October 1969; a
United States Army Certificate of Training, dated 21 October 1969; a United
States Army Certificate of Training, dated 7 November 1969; a Department of
the Army Course Diploma, dated 13 March 1970; Department of the Army,
Headquarters 165th Aviation Group (Combat), Letter Orders Number 5-35,
dated 27 March 1970; a Physician Letter of Support, dated 19 June 1970; a
Letter of Support from his father, dated 19 June 1970; a Letter of Support
from his sister, dated 19 June 1970; a Letter of Support from his pastor,
dated 23 June 1970; and a Letter of Support from a Clinical Licensed Social
Worker, dated 3 March 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 July 1971.  The application submitted in this case is dated
29 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 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 was born on 7 January 1949.  He enlisted in the Regular
Army on 20 March 1969 and successfully completed basic training and
advanced individual training.  He was awarded military occupational
specialty 93J (Air Traffic Control Ground Approach Specialist).

4.  Records show that the applicant was assigned to the 125th Aviation
Company from 16 December 1969 through 8 July 1970 while serving in Vietnam.
 He apparently departed AWOL after failing to return from an emergency
leave.

5.  Records show that the applicant was AWOL for the period of 6 August
1970 through 7 October 1970.

6.  On 9 December 1970, the applicant was convicted by a special court-
martial for being AWOL for the period 8 October 1970 through 8 November
1970.  He was sentenced to be confined at hard labor for 30 days and to
forfeit $62.00 for one month.  On 9 December 1970, the sentence to
confinement at hard labor for 30 days was suspended by the approval
authority.

7.  A DD Form 458 (Charge Sheet), dated 14 July 1971, shows charges were
preferred against the applicant for being AWOL for the period 5 January
1971 through 8 July 1971.

8.  On 19 July 1971, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  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 ineligible for many or all benefits
administered by the Veterans Administration; and 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 an Undesirable Discharge.

9.  The applicant submitted a statement to his commander prior to his
requesting a chapter 10 discharge.  He stated, in effect, while he was
serving in Vietnam he did all kinds of drugs.  He further stated that when
he went home on emergency leave he found that both his mother and wife had
nervous breakdowns and he was under a lot of mental pressure dealing with
the situation at home.  After failing to get a compassionate reassignment
he went AWOL.

10.  The applicant stated for him to relieve the psychological pressure of
dealing with his problems he was having with his wife he needed to be
discharged from the service so that they could get their lives back
together.

11.  A Standard Form 88 (Report of Medical History), dated 27 July 1971,
shows that the applicant was qualified for separation and had no
disqualifying mental disease or condition and his physical profile showed
111211.

12.  A Standard Form 89 (Report of Medical Examination), dated 27 July
1971, shows that the applicant was being separated and that his present
health was "good."

13.  On 28 July 1971, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  On 29 July 1971, he was discharged
with an undesirable discharge and a characterization of service as under
other than honorable conditions after completing 1 year and 7 months of
active service with 280 lost days due to AWOL.

14.  The applicant submitted several letters of support from his family and
pastor at the time that showed he was having problems with his mother and
wife.  The letters explained how he needed to be home to help take care of
them.

15.  The applicant submitted a letter of support from a Clinical Licensed
Social Worker, dated 3 March 2003, that stated the applicant is being
treated for post-traumatic stress disorder and major depression.  The
author further stated that the applicant has been seen over the last two
years on an out-patient and in-patient basis.

16.  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 undesirable discharge.





17.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

18.  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.


19.  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.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was 20 years and 2 months old at the
time his active service began and 22 years and 6 months old at the time of
his discharge.  He successfully completed basic combat training and
advanced individual training and knew the Army's standards of conduct.
Therefore, his contention that he was young at the time of his offenses
does not mitigate his indiscipline.

2.  The applicant provided a letter that shows he is currently being
treated for post-traumatic stress disorder and major depression but the
letter is dated more than 31 years after his discharge.  There is no
evidence in his records that shows the alleged disorder rendered him
mentally incapable or irresponsible at the time of the misconduct which led
to his discharge.

3.  There is no evidence of record and the applicant has not provided
evidence that shows he was diagnosed with post-traumatic stress disorder or
major depression at the time he separated.  There is no medical evidence of
record that shows the applicant had any illness or medical problem prior to
his discharge on 29 July 1971.  Prior to his separation records show that
his physical profile was 111211.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

5.  The applicant's records show that he received one special court-martial
and had two instances of AWOL.  The applicant had completed only 1 year and
7 months of creditable active service with a total of 280 lost days due to
AWOL. Based on these facts, the applicant’s service clearly did not meet
the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of a general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 July 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 July 1974.  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

__ 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                 |AR20040008266                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |12 May 2005                             |
|TYPE OF DISCHARGE       |UD                                      |
|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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