RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 July 2004
      DOCKET NUMBER:  AR2004100363


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Mr. Antonio Uribe                 |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 under other than honorable
conditions discharge be upgraded.

2.  The applicant states that "At the time of my discharge, they were going
to give me a discharge - a General Discharge, but were out and would be for
a week or two."

3.  The applicant continues that he had a job and a place to live in
Florida and if he waited one to two weeks for the general discharge, he
would have lost everything.  The applicant further stated that he was a
good soldier and loved the Army.

4.  The applicant indicated he discovered the error on 17 June 1974.  He
requests that his failure to timely file be excused because he was
diagnosed with post-traumatic stress disorder (PTSD) and is currently being
treated for the condition.

5.  The applicant provides a VA Form 21-4138 (Statement in Support of
Claim), dated 7 July 2003; a undated twelve page self-authored statement; a
four page self-authored letter, dated 20 February 1978; a two page letter
of support from his aunt, dated 7 August 1996; a three page letter of
support from his mother, dated 7 August 1966; a two page self-authored
letter, dated 20 May 1997; a two page self-authored letter, dated 27 March
1993; a one page incomplete letter of support, dated 7 August 1996; a one
page letter of support, dated 26 August 1996; and a two page self-authored
letter, dated 8 July 1997.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel from the Disabled American Veterans requests, in effect, that
the Army Board for Correction of Military Records (ABCMR) resolve this
request in the favor of the applicant and upgrade his discharge.

2.  Counsel states, in effect, that the applicant was unable to adapt to
the service because of his age and his experiences while in combat in
Vietnam which have resulted in long term suffering.

3.  Counsel contends that the ABCMR should highly consider the awards the
applicant received during his service which includes the National Defense
Service Medal, the Vietnam Service Medal with one silver service star, the
Combat Infantryman Badge, the Sharpshooter (Rifle) Badge, the Bronze Star
Medal, the Good Conduct Medal, the Vietnam Campaign Medal and four overseas
bars.

4.  Counsel concludes that the ABCMR should strongly consider the overall
contributing factors of the case and should upgrade the applicant's
discharge.

5.  Counsel provides a two page statement dated 30 June 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 June 1974, the date of his separation.  The application
submitted in this case is dated 21 October 2003.

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 initially enlisted on active duty on 3 May 1966 and was
honorably discharged on 27 April 1967.  He reenlisted for a second time on
24 December 1969 for a period of 6 years.

4.  The applicant's personnel records show that on 23 May 1970, nonjudicial
punishment was imposed against him for mailing a package containing a
.45 caliber pistol barrel and slide assembly on 30 April 1970.  The
punishment consisted of forfeiture of $50.00 per month for two months.

5.  The applicant's personnel records show that on 24 September 1971,
nonjudicial punishment was imposed against the applicant for indulgence in
intoxicating liquor which incapacitated him from the proper performance of
his duties on 24 September 1971.  The punishment consisted of $50.00 per
month for two months and reduction to the pay grade of sergeant/E-5.

6.  The applicant's personnel records show that on 21 September 1972,
nonjudicial punishment was imposed against the applicant for absenting
himself from his place of duty for the period 5 September 1972 through 9
September
1972.  The punishment consisted of forfeiture of $111.00 for one month and
to perform extra duty for two hours a day for a period of 14 days.

7.  Summary Court-Martial Order Number 16, dated 22 December 1972, shows
that the applicant was convicted on 15 December 1972, for absenting himself
from his unit for the period 4 November 1972 through 17 November 1972.  The
sentence consisted of forfeiture of $100.00 for one month and reduction in
pay grade to Specialist Four/E-4.

8.  Special Court-Martial Order Number 23, dated 27 March 1973, shows that
the applicant was convicted on 26 January 1973, for being absent without
leave (AWOL) for the period 3 January 1973 through 29 January 1973.  The
applicant was found guilty and sentenced to confinement at hard labor for a
period of 2 months.

9.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows that on 13 March 1973, the applicant was
confined to Unit #6 (B) at the United States Army Retraining Brigade in Ft.
Riley, Kansas.

10.  The applicant's personnel records contain a parolee agreement wherein
the applicant agreed to abide with the conditions set forth.  The applicant
authenticated this form in his own hand on 17 April 1973.

11.  The applicant's personnel records contain a DA Form 188 (Extract Copy
of Morning Report), dated 16 May 1973, which shows that the applicant was
AWOL for the period 5 May 1973 through 15 May 1973.

12.  The applicant's service records show that on 18 May 1973, the
commanding officer of the U.S. Army Retraining Brigade initiated the
discharge process to eliminate the applicant under the provisions of
chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted
Personnel) for unfitness.

13.  DA Form 2496 (Disposition Form), dated 2 June 1973, shows that the
Chief of Trainee Administration Branch forwarded the recommendation for
discharge for approval.

14.  DA Form 3835 (Notice of Unauthorized Absence from United States Army),
dated 21 January 1974, shows that the applicant was dropped from the rolls
on 3 July 1973.  Item 31 (Remarks) of this form has an entry that the
applicant escaped from confinement at the Correction Training Facility in
Ft. Riley, Kansas.

15.  DA Form 3836 (Notice of Return of U.S. Army Member From Unauthorized
Absence), distributed on 14 May 1974, shows that the applicant was AWOL on
2 June 1973 and remained on AWOL status until he was apprehended by civil
authorities on 17 April 1974.  This form also shows that the applicant was
returned to military control at Ft. Pierce, Florida.

16.  The facts and circumstances surrounding the chapter 10 discharge
process were not available in the applicant's records.

17.  DD Form 214 (Report of Separation From Active Duty) shows that the
applicant was separated on 17 June 1974, under the provisions of paragraph
10-1, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
by reason of for the good of the service and furnished an Undesirable
Discharge Certificate.  His DD Form 214 also shows that he had served 3
years, 2 months and 25 days with 449 days of lost time due to AWOL and
confinement.

18.  The applicant applied to the Army Discharge Review Boards Agency
(ADRB) to upgrade his discharge.  On 9 December 1980, the ADRB reviewed and
denied the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

19.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharge of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time of the applicant's separation, provides
for separation due to unfitness or unsuitability.  Separation for
unsuitability includes unfitness, unsuitability, apathy, alcoholism and
homosexuality.  Service of soldiers separated because of unsatisfactory
performance under this regulation will be characterized as honorable or
under honorable conditions.

20.  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.

21.  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.

22.  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.

23.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Army was out of "general discharges"
and he could not wait two weeks due to that he had a job and a place to
live lined up after he was released from active duty.

2.  Contrary to the applicant's contentions, the evidence of record shows
that he was separated under the provisions of chapter 10, Army Regulation
635-200 for numerous acts of indiscipline.

3.  Discharge under Chapter 10 requires an admission of guilt to the
offenses charged and usually results in a discharge under other than
honorable conditions.  Therefore, the applicant's contention is not
consistent with Chapter 10 procedures and the evidence of record in this
case.

4.  The applicant also contends that he suffers from PTSD.  There is no
evidence and the applicant has provided no evidence that shows he suffered
from PTSD during his service or that PTSD was the cause of his indiscipline
and subsequent separation.  Based on these facts, his contention is not
sufficiently mitigating to warrant relief.

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

6.  The applicant's record of service includes completion of only three
years of his six-year enlistment and 449 days of lost time and confinement.
 As a result, his Army service does not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, he is not
entitled to an honorable discharge.

7.  The applicant’s record of service that includes three nonjudicial
punishments, one summary court-martial, one special court-martial and 449
days of lost time and confinement also is not satisfactory service.
Therefore, the applicant is not entitled to a general discharge.

8.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

9.  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.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 December 1980.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 December 1983.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_FE__ __  _ KL_____  _AU__ __  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 N. Eichorn_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100363                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/20                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19740617                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000/discharge                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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