RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040011564


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 discharge be upgraded.

2.  The applicant states, that he had severe Post Traumatic Stress Disorder
(PTSD).

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 August 1974.  The application submitted in this case
is dated
16 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 record shows that he enlisted in the Regular Army on 13
June 1969.  He completed the required training and was awarded military
occupational specialty 62B10 (Engine Equipment Repairman).  The highest
grade he attained was pay grade E-4.

4.  The applicant’s DA Form 20 shows that he was assigned to a unit in
Germany from 8 November 1969 to 19 April 1970, and that he served in the
Republic of Vietnam from 21 June 1970 to 15 May 1971.  The applicant’s
separation document shows that he earned the following awards:  The
National Defense Service Medal, the Vietnam Service Medal and the Republic
of Vietnam Campaign Medal, with Device 1960.

5.  On 7 June 1971, the applicant was reported for being absent without
leave (AWOL).  He was returned to military control on 10 June 1971.
However, there is no evidence that the applicant received punishment for
the misconduct.
6.  On 6 August 1971, while assigned to a unit at Fort Lewis, Washington,
court-martial charges were preferred against the applicant for being AWOL
from
14 June to 21 July 1971 and from 2 to 3 August 1971.

7.  On 11 August 1971, the applicant was found physically fit for
retention.

8.  On 12 August 1971, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an undesirable discharge and of the rights available to him.  The applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.  He acknowledged that he had not been subjected to
coercion with respect to the request for discharge.  He also stated his
understanding that if his discharge request was approved, he could be
deprived of many or all Army benefits, that he could be ineligible for by
the Department of Veterans Affairs (VA), and that he could be deprived of
his rights and benefits as a veteran under both Federal and State law.  He
further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of an Undesirable discharge.

9.  On 23 August 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable
discharge.  On
24 August 1971, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued confirms he completed 2 years,
1 months and 9 days of creditable active military service and accrued 40
days of time lost due to AWOL.

10.  On 9 January 1975, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and voted to deny
the applicant’s request for an upgrade of his discharge.

11.  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
Certificate.

12.  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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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.

13.  PTSD, an anxiety disorder, produced by exposure to an overwhelming
environmental stress and characterized by recurrent episodes of
experiencing the traumatic event.  PTSD was recognized as a psychiatric
disorder in 1980 with the publishing of the Diagnostic and Statistical
Manual of Mental Disorders (DSM III) diagnostic category.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention has been noted.  However, there is no
evidence nor has the applicant provided any evidence that showed that he
was suffering from PTSD at the time he committed the misconduct that led to
his discharge.  Therefore, there is insufficient evidence to grant the
requested relief.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 9 January 1975.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 8 January 1978.  However, he failed to
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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __PHM__  __BJE___  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.




                                   _____Barbara J. Ellis_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011564                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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