RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 November 2004
      DOCKET NUMBER:  AR2004106002


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert Duecaster              |     |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 administrative discharge be
changed to a medical separation.

2.  The applicant states that he was psychologically and physically abused.
 He now has severe post-traumatic stress disorder.  He is unable to work
and needs Department of Veterans Affairs (VA) benefits.  He has four DD
Forms 214 (Report of Separation from Active Duty) out there.  He feels a
disability rating of 50 percent would not be out of line.  He found his
Army Good Conduct Medal but needs his Vietnam Campaign Medal back and one
oak leaf cluster or a medical medal for every 10 years of suffering.  He
states his last rank was Specialist Four, E-4 and he should be at least an
E-5 by now.  He was last listed on the Temporary Disability Retired List.

3.  The applicant provides a letter from his young grandson; a 7-page,
undated letter from the VA; extracts from an unknown source concerning Army
decorations; and his DD Form 214 for the period ending 16 August 1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 August 1974.  The application submitted in this case
is dated     22 March 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 was born on 22 February 1957.  He enlisted in the U. S.
Army Reserve Delayed Entry Program on 21 June 1974 with his parent's
consent and in the Regular Army on 28 June 1974.

4.  The applicant's service medical records show that on an unknown date he
was treated for a complaint of being assaulted with a pipe.  He was found
to have a swollen cheek and left arm and bruises over his back.  His breath
sounded
clear bilaterally.  He was diagnosed with soft tissue injuries.  On 17 July
1974, he was treated for a shot reaction.

5.  Sergeant J___ prepared a Training Cadre Subjective Evaluation (first
evaluation) on the applicant for the period 9 through 22 July 1974.
Sergeant J___ noted that the applicant had been counseled several times on
his attitude and performance of duty.

6.  Platoon Sergeant D___ prepared a Training Cadre Subjective Evaluation
(second evaluation) on the applicant for the period 22 through 31 July
1974.  Platoon Sergeant D___ noted the applicant had a self-discipline
problem, was poorly motivated, and did not have the proper attitude toward
the Army.

7.  On or about 8 August 1974, the commander initiated separation action on
the applicant under the provisions of Department of the Army message date
time group 011510Z August 1973, subject:  Evaluation and Discharge of
Enlistees before 180 Active Duty Days.  The commander cited as his reasons
the applicant's demonstrated deficiencies in attitude, motivation, and self-
discipline.

8.  The applicant acknowledged notification of his proposed honorable
discharge from the Army.  The notification indicated that due to non-
completion of requisite active duty time, VA and other benefits normally
associated with completion of honorable active duty service would be
affected.  He did not desire counsel, made no statement, and checked that
he did not wish a final type physical exam.

9.  A Report of Psychiatric Evaluation dated 12 August 1974 found the
applicant to have difficulty relating with his peers and his superiors.  A
Medical Corps psychiatrist found him to be poorly motivated to stay in the
Army and on three occasions he had gone absent without leave (AWOL).  The
evaluation found him to be mentally responsible, able to distinguish right
from wrong and to adhere to the right, and to have the mental capacity to
understand and participate in board proceedings.

10.  On 12 August 1974, the appropriate authority approved the
recommendation and directed the applicant be given an honorable discharge.

11.  On 16 August 1974, the applicant was discharged with an honorable
discharge in pay grade E-1, under the provisions of Department of the Army
message date time group 011510Z August 1973.  He had completed 1 month and
19 days of creditable active service and had no lost time.  His DD Form 214
shows he was awarded the National Defense Service Medal.

12.  A DA Form 1577 (Authorization for Issuance of Awards) dated 3 June
1985 authorized issuance of the National Defense Service Medal and no other
medals to the applicant.

13.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic
authority for the separation of enlisted personnel from the Army.  At the
time, paragraph  5-33, which incorporated Department of the Army message
011510Z August 1973, governed the Trainee Discharge Program.  That program
provided for the separation of service members who lacked the necessary
motivation, discipline, ability or aptitude to become productive soldiers
or failed to respond to formal counseling.  The regulation essentially
required that the service member to have been voluntarily enlisted, be in
basic, advanced individual, on the job or service school training prior
award of a military occupational specialty, and must not have completed
more than 179 days of active duty on their current enlistment by the date
of separation.  The regulation provided that soldier could be separated
when they demonstrated they were not qualified for retention due to failure
to adapt socially or emotionally to military life, could not meet minimum
standards prescribed for successful completion of training because of lack
of aptitude, ability, motivation, or self-discipline; of demonstrated
character and behavior characteristics not compatible with satisfactory
continued service.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


15.  The Veterans Administration Schedule for Rating Disabilities (VASRD)
is the standard under which percentage rating decisions are to be made for
disabled military personnel.  Unlike the VA, the Army must first determine
whether or not a soldier is physically fit to reasonably perform the duties
of his office, grade, rank or rating.  Once a soldier is determined to be
physically unfit for further military service, percentage ratings are
applied to the unfitting conditions from the VASRD.  These percentages are
applied based on the severity of the condition.

16.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The VA, however, is not required by law to
determine medical unfitness for further military service.

17.  Army Regulation 600-8-22 prescribes Army policy and criteria
concerning individual military awards.  It provides that the Army Good
Conduct Medal is awarded to individuals who distinguish themselves by their
conduct, efficiency and fidelity during a qualifying period of active duty
enlisted service.  This period is normally 3 years.

18.  Army Regulation 600-8-22 provides for award of the Republic of Vietnam
Campaign Medal with device 1960 to personnel who have served in the
Republic of Vietnam for 6 months during the period 1 March 1961 to 28 March
1973, inclusive.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  There is evidence in his service medical records to show he complained
of a physical assault and he was treated for swelling and bruises but there
is no evidence of who caused those injuries.  There is also no evidence to
show those or any other injuries caused him to be physically unfit for
military duty.  He was given an opportunity to undergo a final separation
physical and chose to forego the same.  The psychiatric evaluation did not
find him to be physically unfit to perform his duties.

3.  The applicant stated he has four DD Forms 214 but provided only one DD
Form 214.  That DD Form 214 shows he was honorably discharged on 16 August
1974 in pay grade E-1 under what later was called the Trainee Discharge
Program.  There is no evidence to show he was placed on the Temporary
Disability Retired List.  He did not meet the eligibility criteria for
award of the Army Good Conduct Medal or the Vietnam Campaign Medal and
there is no evidence to show that he was issued those awards.

4.  The applicant was informed at the time he acknowledged notification of
his separation action that due to non-completion of requisite active duty
time, VA and other benefits normally associated with completion of
honorable active duty service would be affected.  In any case, the
Department of Defense has no jurisdiction over the VA.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 August 1974; therefore, the time
for    the applicant to file a request for correction of any error or
injustice expired on   15 August 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

__mkp___  __jrs___  __rd____  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.




            __Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106002                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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