RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 August 2004
      DOCKET NUMBER:  AR2004100748


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |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 (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that prior to his departing absent
without leave (AWOL), he had been diagnosed with a mental disorder that was
never treated.  He claims that upon his return to military control
subsequent to being AWOL, he was still not treated for his mental illness.
He indicates that had he been treated, it would have resulted in a
determination that his condition was treatable, or that he was unfit for
further military service and resulted in his discharge under honorable
conditions, which would have resulted in veteran’s benefits being available
to him.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Separation Document (DD Form 214),
dated
30 October 1968; DD Form 214, dated 23 November 1971; Separation Document
Correction (DD Form 215), dated 26 October 1978; Two Reports of Medical
History (SFs 90); and a Clinical Record (SF 509).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 November 1971.  The application submitted in this case
is dated 7 November 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’s record shows that he initially enlisted in the Regular
Army and entered active duty on 6 February 1968.  He was trained in,
awarded, and served in military occupational specialty (MOS) 64CA (Truck
Driver) and the highest rank he attained while serving on active duty was
private first class (PFC).

4.  On 31 October 1968, while serving in Germany, the applicant was
honorably separated for the purpose of immediate reenlistment.  At this
time, he was issued a DD Form 214 that documented his honorable active duty
service from
6 February through 30 October 1968.

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
during his active duty tenure, he earned the National Defense Service Medal
and Expert Qualification Badge with Rifle Bar.  There are no acts of valor,
significant achievement or service warranting special recognition
documented in his record.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains
documents (DA Forms 2627) that confirm he accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on the following three separate occasions for the offense(s)
indicated:  18 May 1970, for failing to go to his prescribed place of duty;
8 September 1970, for being AWOL from 19 through 31 August 1970; and 26
January 1971, for being AWOL from 4 through 26 January 1971.

7.  The applicant’s DA Form 20 also confirms that the applicant accrued a
total of 281 days of time lost as a result of being AWOL on five separate
occasions.  On 5 October 1971, a Charge Sheet (DD Form 458) was prepared
that preferred a court-martial charge against him for violating Article 86
of the UCMJ by being AWOL from on or about 28 February through on or about
4 October 1971.

8.  On 4 November 1971, applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.
9.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he would be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered 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.

10.  On 19 November 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 23 November 1971, the applicant
was discharged accordingly.

11.  The DD Form 214 the applicant was issued on the date of his discharge,

23 November 1971, confirms that he completed a total of 3 years and 7 days
of creditable active military service and that he accrued 281 days of time
lost due to AWOL.

12.  No military medical records were made available to the Board and there
is no indication in the separation packet that the applicant suffered from
a medically/mentally disqualifying condition at the time of his discharge.


13.  The applicant provides copies of medical history reports he completed
at different periods of his service.  In the first, he responded “No” to
the Depression or Excessive Worry” block and in the second he responded
“Yes” to the same question.  He also provides a clinical record that shows
he saw a doctor on
30 September 1970 and complained of depression.  The doctor’s recorded
impression was depression.

14.  On 14 June 1977, the applicant’s discharge was upgraded to a GD under
the provisions of the Department of Defense (DOD) Special Discharge Review
Program (SDRP).  However, a review of the upgrade action conducted by the
Army Discharge Review Board (ADRB) conducted under the provisions of Public
Law 95-126, resulted in a determination that the initial discharge was
proper and equitable and a unanimous vote of the ADRB not to affirm the
SDRP upgrade action.
15.  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 UD.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.


17.  Chapter 3 of Army Regulation 635-40 provides guidance on presumptions
of fitness.  It states that the mere presences of an impairment does not,
of itself, justify a finding of unfitness because of physical disability.
In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the Physical Disability Evaluation System.

18.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claims that a mental condition that was diagnosed prior
to his separation contributed to his misconduct and that a determination on
whether this condition rendered him unfit for further service should have
been made at the time of his discharge were carefully considered.  However,
insufficient evidence is found to support these claims.

2.  The medical evidence provided by the applicant shows that he was
treated for depression in September 1970 and that he indicated he suffered
from depression and excessive worry in a medical history form completed
during his separation processing.  However, there is no medical evidence of
record that indicates this medical condition was medically disqualifying
for further service at the time of his discharge.

3.  Although there are no records on file, given he completed a medical
history form at the time, it is presumed that he underwent a complete
separation physical examination during his discharge processing.  It is
further reasonable to conclude that based on the results of this
examination, he was found medically qualified for retention/separation and
as a result, he was cleared for separation by competent medical authority.

4.  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.
Lacking evidence to the contrary, it is concluded that all requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process.  Further, the applicant’s
discharge accurately reflects his overall record of service.

5.  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.
6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 18 October 1978.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 17 October 1981.  However, he 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_     FE       __GJW  _  __JTM __  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 Eichorn__
                CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100748                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/03                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/11/23                              |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |Good of the Service                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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