RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 OCTOBER 2005
      DOCKET NUMBER:  AR20050006039


      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. Rene' R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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 a
general discharge.

2.  The applicant states that he was suffering from a mental illness when
he enlisted in the Army and feels that the mental illness caused his
problems.

3.  The applicant provides his self-authored "biography," a letter from his
clinical psychologist, and his social security disability award letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 June 1975.  The application submitted in this case is
dated
21 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 he enlisted in the Regular Army and
entered active duty on 30 May 1974.  He was trained in, awarded, and served
in military occupational specialty (MOS) 13B20 (Field Artillery Crewman).

4.  On 30 May 1974, nonjudicial punishment was imposed against the
applicant for absenting himself from his appointed place of duty without
authority.  His punishment consisted of forfeiture of $35.00.

5. On 6 November 1974, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 29 October 1974
through 31 October 1974.  His punishment consisted of reduction to the
grade of private/E-1 suspended, 14 days restriction, and 14 days extra
duty.



6.  .  On 21 February 1975, the applicant was convicted by a special court-
martial for being AWOL from 23 December 1974 through 23 January 1975.  His
punishment consisted of reduction to the grade of private/E-1, forfeiture
of $200.00 per month for 3 months, and confinement at hard labor for 4
months.

7.  On 30 April 1975, nonjudicial punishment was imposed against the
applicant for absenting himself from his appointed place of duty without
authority.  His punishment consisted of forfeiture of $80.00, 14 days
restriction, and 14 days extra duty.

8.  On 1 May 1975, the unit commander notified the battalion commander of
his recommendation that the applicant appear before a board of officers to
determine whether he should be discharged under the provisions of Army
Regulation 635-200, chapter 13.  The unit commander stated that the
discharge was recommended because of the applicant's shirking.  He stated
that the applicant is frequently absent without authority from his place of
duty.  He also stated that the applicant said that he will continue to go
awol until discharged.

9.  On 2 May 1975, the unit commander notified the applicant of the
proposed discharge action under the provisions of Army Regulation 635-200,
chapter 13.  He cited the applicant’s record of indiscipline as the reason
for separation.

10.  On 6 May 1975, the applicant underwent a mental status evaluation by a
Medical Corps captain.  The "No" is checked in item 8 of the evaluation
indicating that the applicant has no significant mental illness.
Additionally, Item 10 and 11 are checked "Yes" indicating that the
applicant is able to distinguish right from wrong and able to adhere to the
right.  Item 12, is checked "Yes" which states that the applicant has the
mental capacity to understand and participate in Board proceedings.

11.  On 6 May 1975, the applicant underwent a medical examination.  Item 9,
attempted suicide is checked "Yes."  The applicant also indicates with a
check in the "Yes" block that he has frequent trouble sleeping, depression
or excessive worry, loss of memory or amnesia, nervous trouble of any sort
and periods of unconsciousness.  The Medical Corps captain signed the form
and in block 77 checked "is qualified for" and wrote the words "duty and/or
separation."

12.  On 7 May 1975, the applicant consulted with military counsel.  After
being advised of the basis for the contemplated separation, its effects and
the rights available to him, he waived his right to consideration of his
case by a board of officers, a personal appearance before a board of
officers, and to counsel.  He also elected not to submit statements on his
behalf.
13.  The applicant acknowledged that he may encounter substantial prejudice
in civilian life if a general discharge under honorable conditions is
issued.  He further acknowledged that as a result of issuance of a
discharge under other than honorable conditions, he may be ineligible for
many or all benefits as a veteran under both Federal and State laws and
that he may encounter substantial prejudice in civilian life.

14  On 12 May 1975, the lieutenant colonel in command of the 2d Battalion,
4th Field Artillery, Fort Lewis, Washington, waived the rehabilitative
requirements and recommended approval of the applicant's discharge under
the provisions of Army Regulation 635-200, chapter 13.

15.  On 13 May 1975, the colonel in command of the 9th Infantry Division
Artillery, recommended approval of the applicant's discharge from the
service for reasons of unfitness.  He stated the immediate discharge of the
applicant would be in the best interest of the US Army.

16.  On 28 May 1975, the major general in command of the 9th Infantry
Division and Fort Lewis, Washington, approved the applicant’s discharge
under the provisions of Army Regulation 635-200, chapter 13, unfitness.  He
stated that the applicant will be issued an Undesirable Discharge
Certificate.

17.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that the applicant was discharged under
other than honorable conditions on 6 June 1975.  The narrative reason for
separation is listed as unfitness – shirking.  The applicant had 9 months
and 14 days of creditable service.

18.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade of his discharge within the 15-
year statute of limitations of that board.

19.  In support of his application the applicant provides a twenty-five
page autobiography covering his early childhood through his current
situation.  He expounds on the negative experiences that occurred during
his early childhood and maintains that these experiences influenced his
conduct during his military career.  The applicant states that he needed
help but, the military failed to recognize his mental and emotional
problems at the time of his enlistment.  He opines that if the military had
recognized these problems, his life might have been changed.  The applicant
states that he believes that a grave injustice has occurred with his court-
martial and undesirable discharge.  The applicant concludes by
chronologically listing his psychiatric history and providing a list of
psychotropic medications taken.

20.  In her supporting letter, the clinical psychologist states that she
has been treating the applicant since July 2003.  She admits that the
applicant has received numerous mental health diagnoses in the past twenty-
five years to include post traumatic stress disorder (PTSD).  In her
opinion, the psychologist states that the applicant was a troubled young
man suffering from chronic PTSD at the time he entered service.  She
further opines that he was not only a poor candidate for military duty, but
his functional decline was accelerated by the easy accessibility of alcohol
in the military.

21.  The applicant provides a letter from the social security
administration office which lists his monthly payment after deduction of
his medical insurance premiums.

22.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 13 of this regulation, in effect at the time, provides
for separation for unfitness or unsuitability.  At that time, paragraph 13-
5a provided for the separation of individuals for unfitness whose record
evidenced frequent incidents of a discreditable nature with civil or
military authorities, sexual perversion, drug abuse, an established pattern
for shirking, an established pattern showing dishonorable failure to pay
debts, an established pattern showing dishonorable failure to contribute
adequate support to dependents, and homosexual acts..  An individual
separated by reason of unfitness will be furnished an undesirable discharge
certificate, except that an honorable or general discharge may be issued if
the individual has been awarded a personal decoration or if warranted by
the particular circumstances in his case.

23.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.



24.  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 that his discharge should be upgraded because he
was suffering from a mental illness when he enlisted in the Army.  He feels
that the mental illness caused his problems in the military.

2.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of service.

3.  The applicant argues that he needed help but, the military failed to
recognize his mental and emotional problems.  The applicant's separation
proceedings verify that he was afforded the opportunity to present
statements on his behalf, but declined to do so.  Additionally, the mental
evaluation conducted at the time of the applicant's discharge confirms that
he (applicant) had no significant mental illness.  The evaluation also
confirms that the applicant was able to distinguish right from wrong and
adhere to the right.  Competent military medical authorities determined
that the applicant was qualified for duty and/or separation.  In view of
these facts, the applicant's contention that his mental condition led to
his indiscipline is not sufficient as a basis to grant relief in this case.

4.  The applicant's record of service included three nonjudical
punishments, a special court-martial and a total of 83 days lost due to
AWOL.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

6.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 June 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           5 June 1978.  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

___JS___  __LS  ___  ___KL  __  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 Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006039                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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