RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 May 2005
      DOCKET NUMBER:  AR20040008721


      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. John Slone                    |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 discharge be upgraded from general
(under honorable conditions) to an honorable discharge.

2.  The applicant states, in effect, after returning from his third tour in
Vietnam he was depressed, drank a lot, and had flash backs.  He further
states that he now has post-traumatic stress disorder (PTSD), 100 percent
disabling, and takes large amounts of medications.

3.  The applicant continues that it has taken a long time to get help for
his PTSD and that he was not emotionally fit to request an upgrade of his
discharge.

4.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge); page three of a DA Form 20 (Enlisted
Qualification Record); and a two page Department of Veterans Affairs Rating
Decision, dated 10 July 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 October 1972.  The application submitted in this case is
dated 9 October 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 enlisted in the Regular Army on 27 April 1966 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty (MOS) 94B (Cook).  He was
honorably discharged on 28 December 1967 and reenlisted for a six year term
of service on 29 December 1967.

4.  The applicant was reclassified into MOS 11E (Armor Crewman).  He served
in Vietnam with D Company, 1st Battalion, 77th Armor from 1 July 1968
through 26 June 1969.

5.  On 3 May 1970, the applicant returned to Vietnam.  He served with the
11th Armored Cavalry Regiment; 1st Brigade, 5th Infantry Division; and the
3rd Squadron, 5th Cavalry.

6.  On 8 July 1970, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) leave from 6 July 1970 through 7 July 1970.

7.  On 21 July 1970, the applicant accepted NJP under Article 15, UCMJ for
striking a fellow Soldier.

8.  On 28 September 1971, the applicant departed Vietnam.

9.  On 7 March 1972, the applicant accepted NJP under Article 15, UCMJ for
not being at his appointed place of duty.

10.  On 1 June 1972, the applicant accepted NJP under Article 15, UCMJ for
disobeying a lawful order.

11.  Records show that the applicant was AWOL for the period 2 June 1972
through 17 June 1972.

12.  Records show that the applicant was AWOL for the period 19 September
1972 through 20 September 1972.

13.  Records show that the applicant was AWOL from 7:30 a.m. on
28 September 1972 through 11:00 p.m. on 28 September 1972.

14.  On 29 September 1972, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of Army
Regulation 635-212 (Discharge-Unfitness and Unsuitability), for
unsuitability.  The reason cited by the commander was the applicant’s
character and behavior disorders and attitude towards his duties and the
U.S. Army.  The applicant was advised of his rights and the commander
recommended the applicant receive a general (under honorable conditions
discharge).

15.  On 29 September 1972, the applicant was advised by consulting counsel
of the basis for the contemplated separation action.  He was advised of the
impact of the discharge action.  He signed a statement indicating that he
was advised he was being recommended for discharge under the provisions of
Army Regulation 635-212.  He declined counsel, waived his right to be heard
by a board of officers, and did not submit a statement on his own behalf.

16.  The applicant's medical records are not available.

17.  On 13 October 1972, the appropriate authority approved the
recommendation and directed the applicant receive a general (under
honorable conditions) discharge under the provisions of paragraph 6 of Army
Regulation 635-212 for unsuitability.  On 20 October 1972, he separated
with 6 years, 5 months, and 5 days of creditable active service with 19
days of lost time.

18.  The applicant provided a 2-page Department of Veterans Affairs Rating
Decision that shows he was rated as 100 percent disabled for post-traumatic
stress disorder.

19.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  The regulation
provided, in pertinent part, that members were subject to separation for
unsuitability for inaptitude, character and behavior disorders, apathy
(lack of appropriate interest), defective attitudes, and inability to
expend effort constructively, alcoholism, and enuresis.   When separation
for unsuitability was warranted an honorable or general discharge was
issued as determined by the separation authority based upon the
individual's entire record.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided a letter from the Department of Veterans Affairs
that shows he was rated as 100 percent disabled for post-traumatic stress
disorder but the letter is dated more than 32 years after his discharge.
There is no evidence in his records that shows the disorder rendered him
mentally incapable or irresponsible at the time of the misconduct which led
to his discharge.

2.  There is no evidence and the applicant has not provided evidence that
shows he sought assistance from his chain of command, chaplain, or
community support service for counseling due to his drinking and
psychological problems.  Therefore, there is no basis for this argument.

3.  The applicant's administrative separation was accomplished in
accordance with applicable regulations with no indication of procedural
errors that would tend to jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

5.  The applicant's records show that he received four Article 15s and had
four instances of AWOL.  The applicant had completed 5 years, 5 months, and
3 days of his 6-year reenlistment with a total of 19 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 an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 October 1975.  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

___ JS___  __ RLD__  __ CD __  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.




                                  ____ John Slone ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008721                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 May 2005                             |
|TYPE OF DISCHARGE       |GD                                      |
|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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