RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050006954


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Ms. Qawiy A. Sabree               |     |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 general under honorable
conditions discharge be affirmed.

2.  The applicant states, in effect, he is suffering from PTSD (Post-
Traumatic Stress Disorder).  He further states that his discharge was
upgraded under the Department of Defense Special Discharge Review Program
(DOD-SDRP) but was not affirmed.  He continues that he needs his discharge
affirmed in order to receive veteran's benefits.

3.  The applicant provides a DD Form 214 (Report of Separation from Active
Duty) with an ending period 12 January 1972; a DD Form 215 (Correction to
DD Form 214, Report of Separation from Active Duty) dated 14 July 1978; an
undated Standard Form 180 (Request Pertaining to Military Records); a
memorandum from Veterans Affairs (VA) Regional Office, Chicago, Illinois,
dated 14 November 1978; a memorandum from the National Personnel Records
Center, dated 28 April 2005; and a memorandum from Department of Veterans
Affairs, Chicago, Illinois, dated 24 May 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 April 1978.  The application submitted in this case is dated
15 May 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 in the Regular Army on 26 June 1969 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 36C (Lineman).

4.  Records show that the applicant was absent without leave (AWOL) for the
period 15 September 1969 through 21 September 1969.



5.  On 23 September 1969, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure
to be at his prescribed place of duty.

6.  On 9 February 1970, the applicant accepted NJP under Article 15, UCMJ
for being absent without leave.

7.  The applicant arrived in Vietnam on or about 19 February 1970.

8.  On 20 April 1970, the applicant accepted NJP under Article 15, UCMJ for
disobeying a lawful order and failure to be at his prescribed place of
duty.

9.  On 4 May 1970, the applicant accepted NJP under Article 15, UCMJ for
breaking restriction and failure to be at his prescribed place of duty.

10.  On 28 May 1970, the applicant accepted NJP under Article 15, UCMJ for
leaving his place of duty.

11. On 18 June 1970, the applicant accepted NJP under Article 15, UCMJ for
wrongful possession of marijuana.

12.  On 29 July 1970, the applicant accepted NJP under Article 15, UCMJ for
failure to be at his prescribed place of duty.

13.  On 19 December 1970, the applicant accepted NJP under Article 15, UCMJ
for failure to be at his prescribed place of duty.

14.  On 16 February 1971, the applicant accepted NJP under Article 15, UCMJ
for threatening to assault a guard in execution of his duties.

15.  On or about 18 February 1971, the applicant departed Vietnam.

16.  On 6 May 1971, the applicant accepted NJP under Article 15, UCMJ for
being AWOL for the period 26 March 1971 to on or about 29 April 1971.

17.  Records show that the applicant was AWOL for the period 17 July 1971
through 19 July 1971.

18.  The commander's initial request for the applicant's separation from
the military is not available.



19. On 26 August 1971, the applicant consulted with the Defense Counsel at
Fort Riley, Kansas.  The applicant was advised of his rights and the effect
of a waiver of those rights.

20.  He was also advised of the basis for his separation under the
provisions of Army Regulation 635-212.  The applicant indicated that he
consulted with appropriate counsel, that he requested consideration of his
case by a board of officers, that he requested appearance before a board of
officers, that he did not provide statements on his own behalf, that he
requested representation by military counsel, and that he requested
psychiatric evaluation.

21.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws and that he may
expect to encounter substantial prejudice in civilian life based on that
undesirable discharge.

22.  On 8 September 1971, the unit commander recommended the applicant be
separated for unfitness based on poor performance, inability to be at a
particular place at a specific time, and frequent AWOLs under the
provisions of paragraph 6a of Army Regulation 635-212.

23.  On 22 October 1971, the applicant underwent a psychiatric examination
and was found to have a severe maladjustment reaction, EPTS.  The
examination showed that the applicant was mentally responsible and able to
distinguish right from wrong and to adhere to the right.  The examination
further showed that the applicant's maladjustment consisted of a severe
loss of energy, resentment of authority and a total loss of commitment to
military goals.

24.  The conclusion of the examination showed that there were no
disqualifying mental or physical defects sufficient to warrant disposition
through medical channels and that the applicant had the mental capacity to
understand and participate in board proceedings.

25.  A DA Form 1574, dated 3 December 1971, shows a board of officers
recommended that the applicant be discharged from the service for unfitness
and be issued an undesirable discharge certificate.

26.  Records show that the applicant was AWOL for the period 20 December
1971 through 12 January 1972.

27.  On 23 December 1971, the appropriate authority approved the
applicant's discharge under the provisions of Army Regulation 635-212.
28.  On 12 January 1972, the applicant was discharged.  His DD Form 214
shows that he was discharged under the provisions of Army Regulation 635-
212 by reason of unfitness with an undesirable discharge and with a
characterization of service of under other than honorable conditions.  The
applicant completed      2 years, 4 months, and 9 days of creditable active
service with 68 days of lost time due to AWOL.

29.  On 12 July 1977, the applicant was notified by the Office of the
Adjutant General and the Adjutant General Center, Washington, D.C. that his
application for upgrade of his discharge under the DOD-SDRP was considered
by the Army Discharge Review Board (ADRB) and was approved on 3 June 1977.

30.  On 26 April 1978, the applicant was notified by the ADRB that the
previous upgrading of his discharge had been re-reviewed as required by
Public Law
95-126.  As a result of the review, the ADRB determined that he did not
qualify for upgrading under the new uniform standards for discharge review.
 His upgraded discharge under the SDRP was not affirmed.

31.  On 14 July 1978, the applicant was issued a DD Form 215 that corrected
his DD Form 214 by showing that his discharge under other than honorable
conditions was changed to (general) under honorable conditions.

32.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted, an undesirable discharge was normally considered
appropriate.

33.  The SDRP was based on a memorandum from Secretary of Defense Brown and
is often referred to as the “Carter Program.”  It mandated the upgrade of
individual cases in which the applicant met one of several specified
criteria and when the separation was not based on a specified compelling
reason to the contrary.  The ADRB had no discretion in such cases other
than to decide whether recharacterization to fully honorable as opposed to
a general discharge was warranted in a particular case.

34.  Public Law 95-126 provided in pertinent part for a “Relook Program.”
All cases upgraded from under other than honorable conditions under the
SDRP or extension to Presidential Proclamation (PP) 4313 had to be relooked
and affirmed or not affirmed under uniform standards.  One of the principal
features of Public Law 95-126 was prospective disqualification for receipt
of VA benefits for those originally qualifying as a result of upgrade under
the extension to PP 4313 or the SDRP, unless an eligibility determination
is made under the published uniform standards and procedures.

35.  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 (AR 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 Board 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.  The applicant contends that he has PTSD and needs his discharge changed
in order to receive veteran's benefits.  However, the ABCMR does not
correct records solely for the purpose of obtaining eligibility for
benefits

2.   Evidence shows that the applicant was properly and equitably
discharged in accordance with the regulations in effect at the time and
that the ADRB later upgraded the applicant's discharge from Undesirable to
General Under Honorable Conditions (although the upgrade was not later
affirmed under Public Law 95-126).

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation processes and the
ADRB.

4.  The applicant's records show that he received ten Article 15s (several
for misconduct other than AWOL), had four instances of AWOL, and had 68
days of lost time due to AWOL.  Based on these facts, granting of the
relief requested is not warranted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 April 1978, the date of the last
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 25 April 1981.  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

__KLM __  __DEB__  __ QAS  _  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.




                                  ____ Mr. Kenneth L. Wright __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006954                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |10 January 2006                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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