RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050002705


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 discharge characterized as
under honorable conditions (GD) be upgraded to honorable.

2.  The applicant states that he was a very young Soldier and wanted to
join the service to straighten himself out.  He was proud to be an American
Soldier in Vietnam.  He believed that he was in serious mental fatigue or
having signs of Post Traumatic Stress Disorder (PTSD), at that time.  His
best friend died in his arms on 15 August 1969, and shortly thereafter he
received a Dear John letter from his wife.  He snapped.  He does not really
know why he was doing the things that he was doing.  He also states that
nothing seemed happy anymore, so much death and destruction, and he was not
coping well with life.

3.  He goes on to state that he made a mistake and that no one knew about
his PTSD then, and he felt that it was his problem.  He started working
after his discharge and brought a drug and alcohol problem home from
Vietnam with him. He has been fighting it for years and has gone through
the PTSD Program from 6 October through 11 December 2003 in Palo Alto.  He
was in the New Horizons Program and a psychiatric program.  He is now
alcohol and drug free.

4.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 June 1971, the date of his discharge.  The application
submitted in this case is dated 8 February 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's military records show he entered active duty (AD) on
22 May 1968, as a light weapons infantryman (11B20), at the age of
17 years, 11 months, and 23 days.  He served in Vietnam from 22 November
1968 to 19 November 1969.  He was promoted to sergeant (SGT/E-5) on
19 September 1969.
4.  On 21 May 1970, he was punished under Article 15, Uniform Code Military
Justice (UCMJ), for being AWOL from 26 April to 21 May 1970.  His
punishment consisted of a reduction to E-4, forfeiture of pay, and 15 days
extra duty.

5.  Charges were preferred against the applicant on 8 April 1971, for being
absent without leave (AWOL) from 9 September 1970 to 7 April 1971.

6.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 10 to 13 August 1968 (4 days), from 26 April to
20 May 1970 (25 days), from 9 September to 7 October 1970 (29 days), and
from 8 October 1970 to 6 April 1971 (181 days/dropped from the rolls).

7.  On 30 April 1971, he consulted with counsel and voluntarily requested
discharge for the good of the service in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) if an undesirable discharge were issued.  He
consulted with counsel and elected not to submit a statement in his own
behalf.

8.  The applicant underwent a separation medical examination on 20 May
1971, and was found qualified for separation.  He was also found to be in
good health.
There is no evidence that he was treated for or exhibited any symptoms of
PTSD.

9.  On 5 June 1971, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the pay grade of E-
1 and furnished an undesirable discharge (UD).

10.  The applicant was discharged on 8 June 1971 in the pay grade of E-1.
He had a total of 1 year, 4 months, and 18 days of creditable service and
had 239 days of lost time due to AWOL.

11.  The applicant's DD Form 214 shows that he was awarded the National
Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign
Medal, the Purple Heart, two Overseas Service Bars, and the Combat
Infantryman Badge.  His records also contain a copy of orders awarding him
the Bronze Star Medal for meritorious service in connection with military
operations against a hostile force from November 1968 to November 1969.


12.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge under the Department of Defense (DOD) Special
Discharge Review Program (SDRP) on 6 April 1977.  The ADRB upgraded his
discharge to general (under honorable conditions), under the provisions of
the SDRP, on 18 May 1977.

13.  The letter from the Office of the Adjutant General, Washington, DC,
dated 12 July 1978, informed the applicant that the previous upgrading of
his discharge was re-reviewed by the ADRB as required by Public Law 95-126.
 Upon review, the ADRB determined that the applicant’s discharged did not
qualify for upgrading under the new uniform standards for discharge
reviews.  Accordingly, the applicant’s upgraded discharge under the DOD
SDRP was not affirmed.

14.  Army Regulation 635-200 sets forth the basic authority for 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.

15.  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.

16.  The Special Discharge Review Program (SDRP), often referred to as the
"Carter Program," was announced on 4 April 1977.  The program mandated
upgrade of administrative discharges if the applicant met one of seven
specified criteria, to include various aspects of service in Vietnam.
Compelling reasons for upgrade under primary criteria were the award of a
decoration or service medal, wounded in action, satisfactory completion of
a tour of duty in Southeast Asia, receipt of a prior honorable discharge,
or completion of satisfactory service of   24 months prior to discharge.
Reasons for granting an upgrade under secondary criteria include age,
aptitude, education level, alcohol/drug problem, record of citizenship,
etc.

17.  Public Law 95-126, enacted on 8 October 1977, provided generally, that
no
VA benefits could be granted based on any discharge upgraded under the Ford
memorandum of 19 January 1977, or the DOD SDRP.  It required the
establishment of uniform published standards which did not provide for
automatically granting or denying a discharge upgrade for any case or class
of cases.  The services were then required to individually compare each
discharge previously upgraded under one of the special discharge review
programs to the uniform standards and to affirm only those cases where the
case met those standards.

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 Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation15-185, 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.

19.  The Manual for Courts-Martial, R.C.M. 916, provides that it is an
affirmative defense to any offense that, at the time of the commission of
the acts constituting the offense, the accused, as a result of a severe
mental disease or defect, was unable to appreciate the nature and quality
or the wrongfulness of his or her acts.  Mental disease or defect does not
otherwise constitute a defense.  The accused is presumed to have been
mentally responsible at the time of the alleged offense.  This presumption
continues until the accused establishes, by clear and convincing evidence,
that he or she was not mentally responsible at the time of the alleged
offense.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the
provisions of Chapter 10, AR 635-200, for the good of the service in lieu
of trial by court-martial.  There is no indication that the request was
made under coercion or duress.

2.  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.

3.  The applicant contends that he was young and made mistakes; however,
the evidence clearly shows that he was 17 years, 11 months, and 23 days of
age on the date of his entry on AD.  There is no evidence that the
applicant was any less mature than other Soldiers of the same or of a
younger age who served successfully and completed their term of service.

4.  The applicant’s discharge was upgraded to general (under honorable
conditions) under the SDRP on 18 May 1977.  However, this upgrade was not
affirmed under the provisions of discharge review standards established by
the Department of the Army in accordance with Public Law 95-126.

5.  The applicant alleges that he was in serious mental fatigue or having
signs of PTSD, that no one knew about his PTSD, and he felt that it was his
problem.  He also alleges that he has gone through a PTSD Program, was in
the New Horizons Program, and a psychiatric program.  There is no evidence,
and the applicant has provided none, to support his allegations or to show
that he was diagnosed with PTSD while on AD or that he was enrolled in any
such program for PTSD.  The applicant was cleared for separation and he was
found t
o be in good health at the time of his separation.

6.  The evidence of record clearly shows that it has been approximately
28 years since he applied to the ADRB under the DOD SDRP for an upgrade of
his GD.  It is noted that there is no evidence to show that he reapplied to
the ADRB for an upgrade of his GD (under honorable conditions) within its
15-year statute of limitations.  There is no evidence in the applicant's
records, and the applicant has provided no evidence, to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

7.  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.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 May 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 17 May 1980.  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

_JTM___  __JBG__   _JRM____  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 T. Meixell      __
                                            CHAIRPERSON















                                    INDEX

|CASE ID                 |AR20050002705                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19710608                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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