RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 November 2006
      DOCKET NUMBER:  AR20050004275


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, when he enlisted, his intention was to
make a career out of the military.  He claims his record while serving in
the military is no less than excellent.  He states his trouble started when
he returned from the Republic of Vietnam (RVN).  He claims he was unable to
adjust to the peace time military.  He claims that when he arrived at Fort
Hood, Texas, he was there for two weeks and requested another tour of duty
in the RVN.  He explained to his commander that he could not adjust, but
his commander did not help.  He states when his orders came in, his
commander told him he was going to a different type of duty station where
he might adjust better.

3.  The applicant further states that when he arrived in Italy, it was a
different kind of duty station, but there was still no help.  He states
that he did his time and his battery commander told him he would just have
to live with it, and if he didn’t like that, he could just go home, which
he did.  He states that while home, he contacted the Department of the Army
(DA) and tried to explain his situation and his feelings, but he received
no response.  He states that he turned himself in and was taken to Fort
Knox, Kentucky and placed in the stockade awaiting court-martial.  He
states that he never received the court-martial.  Instead a military
attorney came in and had him sign some papers. He claims he did not know
what they were until he was discharged.  He asks that his discharge be
upgraded because in his view, he was treated unfairly because he did not
truly understand what was happening,  He claims that since that time, he
has been informed by other military personnel that it sounds as if he was
suffering from a Post Traumatic Stress Disorder (PTSD).

4.  The applicant provides the following documents in support of his
application:  Statement in Support of Claim (VA Form 21-4138); 7 Third-
Party Statements of Support; Commonwealth of Kentucky, Kentucky Colonel
Commission Certificate; President of the United States Photograph with Note
of Thanks; and Separation Documents (DD Forms 214).
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 October 1974.  The application submitted in this case
was received on 24 March 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 record shows that he initially enlisted in the Regular
Army and entered active duty on 29 February 1968.  He was trained in,
awarded and served in military occupational specialty (MOS) 13A (Field
Artilleryman).

4.  On 8 November 1968, the applicant was honorably discharged for the
purpose of immediate reenlistment.  The DD Form 214 he was issued at this
time shows he completed 8 months and 9 days of active military service.  On

9 November 1968, he reenlisted in the RA for three years.

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 13 January 1969 through 12 January 1970. Upon
completion of his RVN tour, he was reassigned to Fort Hood, Texas, where he
served until
1 October 1970, at which time he was reassigned to Europe.

6.  On 5 November 1970, while serving in Germany, the applicant was
honorably discharged for the purpose of immediate reenlistment.  The DD
Form 214 he was issued shows he completed a total of 1 year, 8 months and 9
days of active military service, and that he held the rank of sergeant
(SGT) at that time.

7.  On 6 November 1970, while still serving in Europe, the applicant
reenlisted in the RA for six years.

8.  The applicant’s record shows that during his active duty tenure, he
earned the following awards:  National Defense Service Medal (NDSM);
Vietnam Service Medal (VSM) with 4 bronze service stars; RVN Campaign Medal
with 60 Device; RVN Gallantry Cross with Palm Unit Citation; Army
Commendation Medal (ARCOM); Army Good Conduct Medal (AGCM); Sharpshooter
Qualification Badge with Rifle Bar (M-14); and Expert Qualification Badge
with Rifle Bar
(M-16).

9.  The applicant’s record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on 11 August 1971, for
behaving with disrespect toward a commissioned officer.  His punishment for
this offense included a forfeiture of $50.00 per month for two months and
reduction to specialist four (SP4), which was suspended.

10.  The applicant’s Military Personnel Records Jacket (MPRJ) includes a
Report of Medical Examination (SF 88) that documents a separation medical
examination completed on the applicant on 20 August 1974.  This document
confirms the applicant received “Normal” ratings in all clinical
evaluations completed, to include psychiatric, and that no defects were
noted.  The examining physician assigned the applicant a Physical Profile
of 111111 and medically cleared the applicant for separation.

11.  On 26  August 1974, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 2 December 1973
through on or about 28 July 1974.

12.  On 4 September 1974, the applicant consulted with legal counsel and
was advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

13.  In his request for discharge, the applicant acknowledged that by
submitting the request for discharge, he was acknowledging that he was
guilty of the charge against him, or of a lesser included offense therein
contained which also authorized the imposition of a bad conduct or
dishonorable discharge.  He also stated that he understood that if his
discharge request was approved, he could 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 further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of an UD.  In a hand-written statement
the applicant provided with the discharge request, he also stated that if
he were sent back to duty, he did not think he would stay.

14.  On 19 September 1974, the separation authority approved the
applicant’s request for discharge, and directed the applicant be reduced to
the lowest enlisted grade and that he receive an UD.  On 10 October 1974,
the applicant was discharged accordingly.  The DD Form 214 he was issued
shows he completed a total of 5 years, 11 months and 17 days of creditable
active military service and that he accrued 266 days of time lost due to
AWOL and confinement.

15.  The applicant provides seven third-party statements of support, which
include statements from the Mayor of Frankfort, Kentucky and the Franklin
County Kentucky Judge/Executive.  All these statements attest to the
applicant’s excellent post service conduct, his honesty and integrity, and
to his work with Veterans organizations.

16.  There is no indication that the applicant requested an upgrade of
discharge from the Army Discharge Review Board within its 15-year statute
of limitations.

17.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he suffered from a PTSD at the time of
his discharge, and that he was unable to adjust to the peace time military
were carefully considered.  However, the evidence of record shows the
applicant reenlisted twice, once after he had completed his tour of duty in
the RVN and any adjustment problems he had should have surfaced and been
dealt with prior to his final reenlistment.  Further, the record contains a
separation medical examination completed on the applicant during his
discharge processing.  This document confirms he did not suffer from a
disabling mental or physical condition at the time of his discharge.  As a
result, these factors are not sufficiently mitigating to support the relief
requested at this time.

2.  The third-party supporting statements and other documents provided by
the applicant were also carefully considered.  These documents clearly
attest to the applicant’s good character and excellent post service
conduct.  However, while his post discharge behavior has been admirable,
this alone does not provide a basis for upgrading his discharge at this
late date.

3.  The evidence of record confirms the applicant had a disciplinary record
that included his acceptance of NJP prior to committing the AWOL offense
that ultimately led to his discharge.  Further, the record shows he was
thoroughly advised of the basis for the action being taken against him by
legal counsel, and that in a hand-written statement he completed during his
discharge processing, he explained the reasons he wanted to be separated,
and indicated that if he were returned to duty, he would not likely stay.

4.  The evidence of record also confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 October 1974.  Thus, the time for
him to file a request for correction of any error or injustice expired on 9
October 1977. He failed to 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

___AJE _  __TEO___  __CAK _  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.




            ___James E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004275                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/01                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/10/10                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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