RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          11 August 2005
      DOCKET NUMBER:  AR20040011390


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael 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.

2.  The applicant states, in effect, the record is unjust because after
making verbal complaints of unfair treatment and discrimination based on
his race he was disciplined with five Article 15s in a three-month period.
He contends that he really never committed any crime, caused bodily harm to
any military or civilian personnel, never disobeyed a direct order, and
there was no theft, arson, fights, or other adverse actions.  He also
contends that after his last Article 15 he was threatened with a court-
martial and was told to take a “212” discharge.  He points out that had he
known that he would receive a less than honorable discharge he would have
preferred to take his chances at a court-martial.

3.  The applicant provides no evidence in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Veterans of Foreign Wars, as counsel for the applicant, requests
that the applicant's undesirable discharge be recharacterized as honorable.

2.  Counsel states the applicant's misconduct stems from Post Traumatic
Stress Disorder (PTSD).  Counsel reiterates the applicant's contention that
his five nonjudicial punishments between August and October 1969 were the
result of racist actions taken by his command.  Counsel contends that this
argument is plausible, as it is not a secret that racism was very much
alive and well in 1969 in parts of the United States, and it is alive and
well even today.  Counsel points out it is possible that the applicant's
poor behavior immediately after his return from Vietnam was the result of
PTSD, which affected and continues to affect large numbers of Vietnam
veterans, and that his Combat Infantryman Badge places him in a high risk
category for PTSD and other combat-induced anxiety disorders.  Counsel also
points out the applicant failed to address his Article 15 for unauthorized
absence while in basic training or his special court-martial for missing
movement and refusing to participate in a combat patrol while in Vietnam.

3.  Counsel provides a brief, dated 2 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 March 1970.  The application submitted in this case is dated
2 December 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.  The applicant enlisted on 28 August 1967 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11B (light weapons
infantryman).

4.  On 24 October 1967, nonjuducial punishment was imposed against the
applicant for being absent without leave (AWOL) from 21 October 1967 to
23 October 1967.  His punishment consisted of a forfeiture of pay,
restriction, and extra duty.

5.  The applicant arrived in Vietnam on 16 February 1968 and was assigned
to Company C, 3rd Battalion, 60th Infantry of the 9th Infantry Division.

6.  On 24 April 1968, contrary to his pleas, the applicant was convicted by
a special court-martial of missing movement through design and disobeying a
lawful order.  He was sentenced to be confined at hard labor for 6 months
and to forfeit $74 per month for 6 months.  On 25 April 1968, the convening
authority approved the sentence.  On 18 May 1968, the unexecuted portions
of the sentence were suspended for four months.

7.  On 6 February 1969, nonjuducial punishment was imposed against the
applicant for being AWOL for two hours.  His punishment consisted of a
forfeiture of pay and extra duty.

8.  The applicant departed Vietnam on 8 March 1969.

9.  On 6 August 1969, nonjuducial punishment was imposed against the
applicant for a traffic violation (operate a passenger car and failed to
stop for a posted stop sign).  His punishment consisted of a forfeiture of
pay.

10.  On 19 August 1969, nonjuducial punishment was imposed against the
applicant for two specifications of failure to repair.  His punishment
consisted of a reduction to E-3 and a forfeiture of pay.

11.  On 28 August 1969, nonjuducial punishment was imposed against the
applicant for being AWOL for one day.  His punishment consisted of a
reduction to E-2, a forfeiture of pay, restriction, and extra duty.

12.  On 2 September 1969, nonjuducial punishment was imposed against the
applicant for two specifications of failure to repair.  His punishment
consisted of a reduction to E-2.

13.  In October 1969, nonjuducial punishment was imposed against the
applicant for disobeying a lawful general regulation (driving a vehicle
without proper post registration).  His punishment consisted of a
forfeiture of pay.

14.  A Standard Form 88 (Report of Medical Examination), dated 26 November
1969, indicates that a psychiatric evaluation was conducted on 24 November
1969; however, this evaluation is not available.  The applicant underwent a
separation physical examination on 26 November 1969 and was found qualified
for separation with a physical profile of 111111.  The applicant reported
"I am in good health" on his Standard Form 88 (Report of Medical History),
dated
26 November 1969.

15.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant's DD Form
214 (Report of Transfer or Discharge) shows that he was discharged with an
undesirable discharge on 4 March 1970 under the provisions of Army
Regulation 635-212 for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 2
years and 5 months of creditable active service with 36 days of lost time
due to AWOL and confinement.

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

17.  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 involved in frequent incidents of
a discreditable nature with civil or military authorities were subject to
separation for unfitness.  An undesirable discharge was normally considered
appropriate.

18.  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.

19.  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.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record to support the applicant's contention
that he was the victim of racial discrimination or that he was treated
unfairly.

2.  The physical examination conducted on 26 November 1969 found the
applicant qualified for separation with a physical profile of 111111.
There is no medical evidence of record that shows the applicant had any
medical conditions prior to his discharge on 4 March 1970.

3.  The applicant’s record of service included seven nonjudicial
punishments, one special court-martial conviction, and 36 days of lost
time.  As a result, his record of service was not satisfactory and did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant a general discharge or an honorable discharge.  The
applicant's record of indiscipline began before he arrived in Vietnam. Two
of his Article 15's and the special court-martial occurred before the time
he contended he was a victim of racial discrimination.

4.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s discharge under the provisions of Army Regulation 635-212
for unfitness was administratively correct and in conformance with
applicable regulations.

5.  The type of discharge directed and the reasons for separation were
appropriate considering his record of service.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 4 March 1970; therefore, the time for the
applicant to file a request for correction of any injustice expired on 3
March 1973.  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_____  DJ______  MF______  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                 |AR20040011390                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700304                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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