RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20050000099


      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 he has been diagnosed with Post Traumatic Stress
Disorder (PTSD) which was untreated for 32 years and aggravated by his
military service.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge); a letter, dated 8 April 2005, from a Member of Congress; copies
of medical records from the Louisiana State University Medical Center; and
service personnel records and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 June 1973.  The application submitted in this case is dated
9 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 was inducted on 20 April 1972.  He successfully completed
basic combat training and advanced individual training in military
occupational specialty 76Y (petroleum storage specialist).

4.  On 8 September 1972, nonjudicial punishment was imposed against the
applicant for appearing without a name tag and failure to repair (three
specifications).  His punishment consisted of a reduction to E-1, a
forfeiture of pay, restriction, and extra duty.

5.  On 7 December 1972, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay and extra duty.

6.  On 23 February 1973, contrary to his pleas, the applicant was convicted
by a special court-martial of communicating a threat to injure and
communicating a threat.  He was sentenced to forfeit $100 per month for 3
months and to be confined at hard labor for 3 months.  On 13 March 1973,
the convening authority approved the sentence.

7.  On 14 May 1973, the applicant underwent a mental status evaluation.  He
was rated "normal" for behavior, he was found to be fully alert and fully
oriented,
his mood was rated "level," his thinking process was clear, his thought
content was rated "normal," and his memory was rated "good."  It was
determined that he was mentally responsible, that he was able to
distinguish right from wrong, able to adhere to the right, that he had the
mental capacity to understand and participate in board proceedings, and
that he met the retention standards prescribed in chapter 3, Army
Regulation 40-501.

8.  On 14 May 1973, the applicant underwent a separation physical
examination and was found qualified for separation with a physical profile
of 111111.

9.  On 22 May 1973, nonjudicial punishment was imposed against the
applicant for disobeying a lawful command.  His punishment consisted of a
forfeiture of $65 pay per month for 1 month and restriction.

10.  The applicant was notified of his pending separation under the
provisions of Army Regulation 635-200, chapter 13, for unfitness.  On 11
June 1973, after consulting with counsel, the applicant waived
consideration of his case by a board of officers, waived a personal
appearance, and waived representation by counsel.  He also elected not to
submit a statement on his own behalf.

11.  The applicant’s unit commander initiated action to separate him under
the provisions of Army Regulation 635-200, chapter 13, for unfitness.

12.  On 12 June 1973, the separation authority approved the recommendation
for separation and directed that the applicant be furnished an undesirable
discharge.

13.  On 12 June 1973, the applicant was discharged with an undesirable
discharge under the provisions of Army Regulation 635-200 for unfitness due
to frequent incidents of a discreditable nature with civil or military
authorities.  He had served 10 months of creditable active service with 112
days of lost time due to AWOL and confinement.

14.  There is no evidence in the applicant's service personnel records
which show that he was diagnosed with PTSD prior to his discharge.

15.  The applicant provided medical records from the Louisiana State
University Medical Center which shows that he was diagnosed with PTSD in
2004 and subsequently underwent therapy.
16.  On 22 August 1974, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.  On 20 August 1979, the
ADRB denied the applicant's request for a general discharge.

17.  Army Regulation 635-200 set forth the basic authority for separation
of enlisted personnel.  Chapter 13, in effect at the time, applied to
separation for unfitness and unsuitability.  The regulation provided, in
pertinent part, for the separation of personnel for unfitness due to
frequent incidents of a discreditable nature with civil or military
authorities.  An undesirable discharge was normally considered appropriate.


18.  Army Regulation 635-200 is the current regulation governing the
separation of enlisted personnel.  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.


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.

21.  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 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.  Although the applicant contends he has been diagnosed with PTSD which
was untreated for 32 years and aggravated by his military service, there is
no evidence of record which shows that the applicant was diagnosed with
PTSD or a similar condition prior to his discharge on 12 June 1973.
Medical evidence of record shows that the applicant was found mentally and
medically qualified for separation.

2.  The applicant’s record of service included three nonjudicial
punishments, one special court-martial conviction and 112 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.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 20 September 1979.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 19 September 1982.  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 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                 |AR20050000099                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730612                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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