RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050002316


      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. W, W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 for the good of
the service in lieu of trial by court-martial be upgraded to honorable.

2.  The applicant states, in effect, that he had emotional problems (post-
traumatic stress disorder (PTSD)) and mental problems (bi-polar disorder).


3.  The applicant provides copies of his DD Form 214 (Report of Transfer or
Discharge), two pages of his four page DA Form 20 (Enlisted Qualification
Record), a statement from a mental health care provider to the effect that
he under treatment for recurrent major depressive disorder and PTSD, and
letters from his mother, a friend, a family friend, and the Department of
Veteran Affairs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 April 1971.  The application submitted in this case is dated
14 January 2005.

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 enlisted with parental consent on 15 December 1967.  He
completed training as an automotive mechanic and served briefly at Fort
Riley, Kansas.

4.  He reported to the 264th Transportation Company in Vietnam on 5 October
1968.  He served as a longshoreman until 6 January 1969 when he was
transferred to the 444th Transportation Company where he was assigned as a
heavy truck driver.  On 17 August 1969 a special court-martial convicted
him of absence without leave (AWOL) from 15 through 22 January and from
4 through 21 February 1969 and willful disobedience of his commanding
officer.

5.  Following confinement, the applicant was assigned to B Company, 1st
Battalion (Mechanized, 16th Infantry Regiment, 1st Infantry Division as a
tracked vehicle mechanic where he received nonjudicial punishment (NJP) for
violation of a lawful order.  On 3 December 1969 he returned to the United
States.

6.  The applicant reported to Fort Hood, Texas on 14 January 1970.  He
received NJP for AWOL on 20 and 21 January 1970.  On 1 June 1970 a second
special court-martial convicted him of AWOL from 7 March through 30 April
1970.

7.  On 18 June 1970 the company commander requested that the applicant be
afforded a mental health consultation for the purpose of psychiatric
clearance for administrative separation under the provisions of Army
Regulation 635-212.

8.  On 8 July 1970 a bar to reenlistment was approved by the division
commander.  The applicant was then AWOL from 8 through 27 August 1970 and 2
September through 28 February 1971.

9.  On 9 April 1971 the applicant was separated with an undesirable
discharge under the provisions of Army Regulation 635-200, chapter 10 for
the good of the service in lieu of trial by court-martial.  He had 2 years,
5 months and 18 days of creditable service and 138 days lost time.  The
separation processing documents are not contained in the available records.

10.  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.

11.  On 25 November 1975 the applicant was notified by the Office of the
Pardon Attorney, U. S. Department of Justice that his discharge had been
changed to a clemency discharge under the provisions of Presidential
Proclamation 4314.

12.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former Soldiers who
voluntarily entered into and completed an alternate restitution program
specifically designed for former Soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Upon successful completion of the alternate service, former
members would be granted a clemency discharge by the President of the
United States, thus restoring his or her affected civil rights.  The
clemency discharge did not effect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration.  Soldiers who were AWOL entered the program by returning to
military control and accepting a discharge in lieu of trial by court-
martial.

13.  The supporting documentation submitted by the applicant includes the
following letters:

      a.  his mother writes that the applicant was an even tempered
obedient child who always wanted to be in the military as his father, two
brothers and a cousin had been — about 6 months after he enlisted he was
sent to Vietnam, while there marital problems started, his mother-in-law
passed away and he could not stand the pressure — maybe if he had been able
to get counseling he would have been to make it, but he was never able to
get to see the officers about his problems;

      b.  a friend vouches for his character, she is baffled about his
situation, and is sure he regrets any past mistakes;


      c.  a family friend of many years states that the applicant should be
given a second chance to get disability benefits, he thinks the applicant
made bad judgments unknowingly but he is on the right path now and has made
great changes — the applicant has stated that "he could tell all men the
right way is to work within the system;" and;


      d.  the VA letter explains how to go about appealing the VA's
disqualification for benefits.

DISCUSSION AND CONCLUSIONS:

1.  There is no substantiating evidence to show that at the time of the
discharge the applicant was suffering from a mental or emotional defect so
severe that he could not tell right from wrong and adhere to the right.  In
the absence of such evidence the claimed PTSD and depression issue does
nothing to demonstrate an injustice in the discharge.

2.  There is no indication in the available record that the applicant had
any unusual family problems or that he made any attempt to apprise his
chain of  command of such problems.  Furthermore, he offers no explanation
of how his persistent misconduct relates to his reported personal problems.
3.  The support provided by the letters is noted, but there is nothing
therein that is so unusual or meritorious as to warrant the requested
relief.

4.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record, which contains evidence of no redeeming service of note
but does include two special court-martial convictions, two NJPs, repeated
offenses in a hostile fire area and 138 days of lost time.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 April 1974.  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

__ALR __  _MHM __  __SLP___  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.




                                  _     Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002316                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710409                                |
|DISCHARGE AUTHORITY     |AR635-200, ch 10 . . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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