RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050003115


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Della R. Trimble              |     |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 his undesirable discharge be upgraded to general
under honorable conditions.

2.  The applicant states, in effect, that the discharge is not what he
agreed to at the time.  He further states that he was released from the
service without a physical or mental evaluation.  He adds he was suffering
from Post Traumatic Stress Disorder and possibly "Agent Orange at the
time."  The applicant states that he submitted documentation of his
records.  He adds the medical documentation can be verified by his medical
records which are not being released to him.

3.  The applicant provides a self authored undated statement; a copy the
Purple Heart award; Headquarters, 93rd Evacuation Hospital General Orders
Number 111, dated 19 April 1968; a copy of Special Orders Number 1116,
dated 25 April 1968; and a copy of Special Orders Number 88, dated 1 May
1968, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 June 1974, the date of his separation.  The application
submitted in this case is dated 5 November 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 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 that he entered active duty on
23 February 1966 and was awarded military occupational specialty (MOS)
12B20 (Combat Engineer) and served until he was honorably discharged on
29 August 1968.  On 30 August 1968, he reenlisted in the Army for a period
of 3 years.



4.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows he served in Germany from 22 July 1966 through
4 February 1967.  He also served in Vietnam from 20 June 1967 through 5 May
1968.

5.  On 30 June 1966, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL).  His punishment consisted
of forfeiture of $15.00 pay per month for one month, extra duty and
restriction for 10 days.

6.  On 25 April 1967, nonjudicial punishment was imposed against the
applicant for wrongfully and dishonorably failing to pay his debt in the
sum of $69.50.  His punishment consisted of reduction to private/pay grade
E-2, suspended for a period of 3 months, unless sooner vacated.

7.  On 13 November 1968, nonjudicial punishment was imposed against the
applicant for leaving the Fort Carson Military Reservation without a pass
on 14 July 1967 and with intent to deceive, making a false statement to an
officer of the United States on 12 November 1968.  His punishment consisted
of reduction to private first class/pay grade E-3, forfeiture of $75.00 per
month for 2 months, and restriction and extra duty for 30 days.

8.  The applicant's service records contain a DD Form 458 (Charge Sheet),
dated 12 December 1969, which shows he was charged with being AWOL from
30 November 1968 through 10 December 1969 and for willfully disobeying a
lawful command by a superior commissioned officer on 14 December 1969.

9.  On 18 February 1970, the 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 undesirable discharge (under other than honorable
conditions), and of the procedures and rights that were available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge under the provision of Army Regulation 635-200, chapter
10, for the good of the service, in lieu of trial by court-martial.

10.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
may be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate, 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.  He also acknowledged that he understood that
he may expect to encounter substantial prejudice in civilian life by reason
of an undesirable discharge.

11.  On 20 February 1970, the applicant's commander forwarded his
recommendation for separation of the applicant to the commander of the U.S.
Special Processing Detachment, Fort Riley, Kansas for approval.

12.  On 20 February 1970, the commander of the U.S. Special Processing
Detachment, Fort Riley, Kansas, concurred with the recommendation and
forwarded the recommendation for separation of the applicant to the
commanding general, Fort Riley, Kansas for approval.

13.  On 2 March 1970, the major general in command of Fort Riley, Kansas
approved the applicant's request for discharge and directed he be reduced
to the rank of private/pay grade E-1 and furnished an Undesirable Discharge
Certificate.

14.  The applicant's service records contain DA Form 3082-R (Statement Of
Medical Condition (When Examined More Than 3 days Prior To Separation)),
dated 26 March 1970, wherein the applicant acknowledged his last separation
examination was on 7 January 1970, at Irwin Army Hospital, Fort Riley,
Kansas.  This form also shows he made the annotation that there has been no
change in his medical condition.  The applicant authenticated this form in
his own hand.
The applicant's service records do not contain other medical documentation.

15.  The applicant's DD Form 214 shows that he was discharged on 26 March
1970, under the provisions of chapter 10 of Army Regulation 635-200, for
the good of the service and issued an Undesirable Discharge Certificate.
His record shows he served under his current period of service for 6 months
and 15 days of creditable service and 375 days of lost time.

16.  The applicant submitted a 1-page self-authored statement which
essentially states:  he was injured in Vietnam while escorting an Armored
Vehicle Launched Bridge to bridge a site that was destroyed by the Viet
Cong.  He further states that he was ambushed from both sides and was
operating a personnel carrier that was hit by an RPG9.


17.  The applicant's statement also points out that he was mentally
distraught after returning from Vietnam.  He was called a baby-killer; his
wounds prevented him from fully completing physical training duties; he was
tormented by his peers and upper ranks; he was having severe flashbacks at
the time; he had difficulty sleeping; and he had trust issues with anyone
in authority since being given false information about his promotion to the
rank of sergeant and instead received an Article 15.

18.  He also claims, while in an AWOL status, he never tried to hide and he
used his correct name and social security number.  He adds he has had
problems stemming from this situation.  He points out trust issues ended
his marriage or a stable emotional relationship with anyone.  He states he
still has flashbacks and zones out.  He further states he is suffering from
Post Traumatic Stress Syndrome and possibly Agent Orange side effects.  He
continues by saying that, the reason he is requesting this change is
because of his health problems and memory loss.  He concluded his statement
by claiming to "have numerous scars and shrapnel pieces are still coming
out of my arms and legs."

19.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

20.  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.

21. 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.

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to
a general discharge because it is not what he agreed to at the time; he was
released from the service without a physical or mental evaluation; and
suffers from Post Traumatic Stress Disorder, and possibly "Agent Orange at
the time" and he is not eligible for Veterans benefits, because of health
problems and memory loss.

2.  The evidence of record shows in this case he was separated under the
provisions of chapter 10, Army Regulation 635-200 for numerous acts of
indiscipline.

3.  Discharge under Chapter 10 requires an admission of guilt to the
offenses charged and usually results in a discharge under other than
honorable conditions.  Therefore, the applicant's contention is not
consistent with Chapter 10 procedures and the evidence of record in this
case.

4.  Review of the applicant's records show his first period of service was
honorable.  However, evidence of record also accurately reflects his
overall service during his second term of service.  His records show he was
charged with the commission of several offenses punishable under the
Uniform Code of Military Justice with a punitive discharge.  After
consulting with defense counsel, the applicant voluntarily requested
discharge from the Army in lieu of trial by court-martial.

5.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

6.  The period of service under consideration includes nonjudicial
punishment for leaving the base without a pass, making a false statement
with intent to deceive a superior officer of the United States, and for 346
days of lost time due to being AWOL which resulted in his request for
discharge and separation with an undesirable discharge.
7.  Based on his indiscipline, the applicant's service clearly does not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  This misconduct also renders his service unsatisfactory.
Therefore, this period of service is unsatisfactory and does not merit an
honorable or a general discharge.

8.  The applicant also contends that he was released without a physical or
mental evaluation.  The applicant's service record shows he acknowledged
having his last separation examination on 7 January 1970, at Irwin Army
Hospital, Fort Riley, Kansas.  He also annotated by his signature that
there had been no change in his medical condition.  The medical
documentations submitted by the applicant only shows he was treated by the
7th Field Hospital and reassigned as an inpatient to Irwin Army Hospital on
5 May 1968.

9.  The applicant also contends he was suffering from Post Traumatic Stress
Syndrome and possibly the side effects of Agent Orange and memory loss.
There is no evidence and the applicant has provided no evidence that shows
he suffered from any or all of these conditions during his service or that
his conditions caused his indiscipline and subsequent separation.  Based on
theses facts, his contention is not sufficiently mitigating to warrant
relief.

10.  The applicant’s contentions have been noted; however, these factors do
not provide a sufficient basis for upgrade of his discharge.  Additionally,
the ABCMR does not grant requests for upgrade of discharges solely for the
purpose of making the applicant eligible for veterans or other benefits.

11.  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.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
25 March 1973.  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

_SK__ _  _DRT___  _DA_____  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.






            __Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004215                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700326                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch10                        |
|DISCHARGE REASON        |Chapter 10 for the good of the service  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director, Mr. Chun                      |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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