RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040010762


      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. Alan Chin                     |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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,
characterized as under other than honorable conditions, be upgraded to an
honorable discharge due to his claim of Post Traumatic Stress Disorder
(PTSD).

2.  The applicant states that personal and mental problems impaired his
ability to serve and that when he returned from overseas, he could not
adjust to stateside duty.

3.  He further states that he took the course for PTSD at the Hampton
Veterans Affairs (VA) Medical Center [Hampton, Virginia] where he continues
undergoing therapy.  He continues that he had combat service with medals,
that his record of promotions showed he was generally a good service
member, and that he has been a good citizen since his discharge.

4.  He further states that clemency is warranted because it is an injustice
for him to continue to suffer the adverse consequences of a bad discharge.

5.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) with a separation date of 23
July 1971, a copy of his DD Form 214 with a separation date of 9 March
1966, a self-authored letter, a letter of support from his spouse, a
statement of support from a previous employer, and seven completion of
training certificates from commercial automotive corporations.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 July 1971, the date of his discharge from the service.  The
application submitted in this case is dated 26 November 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 service personnel records show he enlisted in the
Virginia Army National Guard (VAARNG) on 6 March 1961 for a period of 3
years.  On 15 April 1961, he was ordered to active duty for training at
Fort Jackson [South Carolina].  He successfully completed basic training on
14 October 1961 and was released from active duty and returned to the
VAARNG to complete his remaining service obligation.  On 19 October 1964,
the applicant was discharged from the VAARNG for the purpose of induction
into the Regular Army.

4.  On 20 October 1964, the applicant was inducted for a period of 2 years.
 During this period, he successfully completed advanced individual training
and airborne training and was awarded the military occupational specialty
63B2P (Wheel Vehicle Mechanic).  On 9 March 1966, he was honorably
discharged for the purpose of immediate reenlistment.  On 10 March 1966,
the applicant reenlisted for a period of 4 years.  The highest grade the
applicant held was in the rank of specialist/pay grade E-4.

5.  Records show that on 20 July 1966, the applicant accepted nonjudicial
punishment under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ) for being absent without leave (AWOL) from 15 July 1966 to
19 July 1966.  His punishment included reduction to the rank of private
first class /E-3, suspended for four months; forfeiture of $20.00 for one
month; and extra duty for 14 days.

6.  On 27 September 1966, the applicant accepted nonjudicial punishment
under the provisions of Article 15, UCMJ for failing to go at the time
prescribed to his appointed place of duty on 26 September 1966.  His
punishment included reduction to the rank of private first class/E-3,
suspended until 27 December 1966; forfeiture of $37.00 for one month;
restriction to the company area for 14 days; and extra duty for 14 days.

7.  On 10 October 1966, the suspension of reduction to the rank of private
first class imposed on 27 September 1966 was vacated.  The reason for the
vacation of suspension is not in the available records.

8.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) of the applicant’s DA Form 20 (Enlisted
Qualification Record) show that the applicant had three periods of AWOL for
1,261 days; two periods of military confinement for 51 days; one period of
dropped from the rolls as a deserter for 51 days; and three periods of
civilian confinement for 344 days.  The applicant’s total lost time was
1,707 days.

9.  On 15 October 1970, the United States District Court of Wyoming
convicted the applicant on two counts of Grand Larceny.  He was sentenced
to terms of not less than 1½ years nor more than 2 years for each count.
He was incarcerated at the Wyoming State Penitentiary to serve his
sentence.

10.  On or about 1 June 1971, the applicant was notified that he was being
considered for elimination under the provisions of Army Regulation 635-206
because of misconduct, based on his civil court conviction.

11.  The applicant was advised by competent authority of his right to have
his case considered by a board of officers; to appear in person before a
board of officers; to submit statements in his own behalf; to be
represented by counsel; to appeal his civil court conviction; to waive any
of this rights; and to withdraw any waiver of rights at any time prior to
the date the discharge authority directs or approves his discharge and
request his case be presented before a board of officers.

12.  On 4 June 1971, the applicant submitted a statement acknowledging that
he had been advised by counsel of the basis for the contemplated action
against him under the provisions of Army Regulation 635-206 because of
misconduct.  The applicant waived consideration by a board of officers and
waived a personal appearance.  Additionally, he indicated that he was not
submitting statements on his own behalf, waived counsel, and did not intend
to appeal his civil court conviction.

13.  The applicant acknowledged that, as a result of issuance of a
discharge under conditions other than honorable, he may be ineligible for
many or all benefits as a veteran under both Federal and State laws, and
that he may expect to encounter substantial prejudice in civilian life.

14.  There is no evidence the applicant underwent a separation medical
examination.  There are no medical records which show that he was diagnosed
with or treated for PTSD or any other personal or mental problems.
Additionally, there is no evidence of record to show that he sought medical
or mental counseling for his claimed problems prior to his discharge from
the service.

15.  On 8 June 1971, the applicant’s commander recommended him for
discharge under the provisions of Army Regulation 635-206 due to
misconduct.

16.  On 9 June 1971, the applicant’s intermediate commander recommended
approval and that he be furnished an Undesirable Discharge Certificate.

17.  On 24 June 1971, the appropriate authority approved the recommendation
for discharge due to misconduct – conviction by a civil court, directed
that the applicant be reduced to the lowest enlisted grade, and directed
that an Undesirable Discharge Certificate be furnished.

18.  On 23 July 1971, the applicant was discharged under the provisions of
paragraph 37 of Army Regulation 635-206 due to conviction by a civil court,
with a characterization of service of under other than honorable
conditions.  The applicant’s DD Form 214, with a separation date of 23 July
1971, reflects he had served 8 months and 9 days of service on his current
enlistment and had 3 years, 10 months, and 25 days of other service, for a
total of 4 years, 7 months, and 4 days.  He was credited with 2 years, 6
months, and 29 days of total active service.

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

20.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for misconduct
(fraudulent entry, conviction by civil court, and AWOL or desertion).  That
regulation provided, in pertinent part, that an individual will be
considered for discharge when he has been initially convicted by civil
authorities, or action taken against him which is tantamount to a finding
of guilty, of an offense for which the maximum penalty under the Uniform
Code of Military Justice is death or confinement in excess of
1 year.  An undesirable discharge was normally considered appropriate.

21.  Army Regulation 635-200, paragraph 3-7a, 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.

22.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge, characterized as
under other than honorable conditions, should be upgraded to an honorable
discharge.

2.  Evidence of record shows that the applicant was properly and equitably
discharged in accordance with regulations in effect at the time.  The type
of discharge directed and the reason for separation was appropriate
considering all of the facts in this case.  The records do not contain any
indications of procedural errors that would tend to jeopardize his rights.

3.  The applicant implies that his discharge should be upgraded so he will
be eligible for medical benefits.  The ABCMR does not upgrade discharges
solely for making the applicant eligible for benefits.

4.  The applicant also contends that he suffers from PTSD, as well as other
personal and mental problems, that impaired his ability to serve.  There is
no evidence and the applicant has provided no evidence that shows he
suffered from PTSD or any other personal or mental problems that was the
cause of his indiscipline and subsequent separation.  Based on these facts,
his contention is not sufficiently mitigating to warrant relief.


5.  The applicant states that he has been a good citizen since his
discharge.  He submitted a letter of support from his spouse and former
employer.  While post-service conduct may be noteworthy, good post-service
conduct by itself is not sufficient to overcome his military record of
indiscipline, or a basis for upgrading his discharge.

6.  The applicant’s contention that he had combat service with medals; that
his record of promotion showed he was a generally good soldier; and that he
continues to suffer the adverse consequences of a bad discharge is not
sufficiently mitigating to warrant the relief requested.

7.  The applicant’s military record of service includes two nonjudicial
punishments and over 1700 days of lost time due to AWOL and civil
confinement.  As a result, his Army service does not meet the standards of
acceptable conduct and performance of duty for Army personnel.
Furthermore, this service is also not satisfactory in view of the amount of
his lost time and reasons for his extended absences.  Based on these facts,
his overall service is not sufficiently meritorious to warrant relief in
the form of an honorable or a general discharge.
8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1971, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 22 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

__LDS__  __LGH___  __PHM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.




                                  ____Linda D. Simmons__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010762                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710723                                |
|DISCHARGE AUTHORITY     |AR 635-206, PARA 37                     |
|DISCHARGE REASON        |MISCONDUCT – CONVICTION BY CIVIL COURT  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHNEIDER                           |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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