RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060002210


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was under a great deal of
stress and in all probability he was suffering from "Post Traumatic
Syndrome (PTSD), which occurred after being charged with manslaughter.  He
states, that he hit a pot hole and lost control of the vehicle which was
due to reckless driving.

3.  The applicant provides character references and a statement from a
Clinical Psychologist in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 31 August 1972, the date of his discharge from
active duty.  The application submitted in this case is dated 10 January
2006.

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 reenlisted in the Regular Army on
19 May 1970, with 8 months and 11 days of prior active service.  He was
trained in, awarded and served in military occupational specialty (MOS)
64C10 (Motor Transportation Operator), the highest rank he attained was pay
grade E-4.  The applicant’s record shows that he was awarded the National
Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam
Commendation Medal, the Driver Badge with Bar,  and the Sharpshooter Badge
with Rifle Bar.

4.  On 4 May 1971, the applicant accepted nonjudicial punishment (NJP) for
being disrespectful to his superior noncommissioned officer and for
disobeying a lawful order.  His imposed punishment was a forfeiture of
$30.00 pay and a reduction to pay grade E-3.

5.  On 9 August 1971, the applicant accepted NJP for operating a 5 ton
tractor truck in an unsafe manner which caused the truck to strike and kill
a local National.  His imposed punishment was a forfeiture of $30.00 pay
and a reduction to pay grade E-2 (suspended for 30 days) and 14 days extra
duty.

6.  On 12 October 1971, the applicant accepted NJP for two incidents of
driving a military vehicle in a reckless manner and for dereliction in the
performance of his duties.  His imposed punishment was a reduction to pay
grade E-2, a forfeiture of $50.00 pay and 30 days extra duty.

7.  On 27 June 1972, the applicant accepted NJP for being absent without
leave from 23 to 25 June 1972.  His imposed punishment was a reduction to
pay grade E-1, 10 days extra duty and an oral reprimand.

8.  On 31 July 1972, the applicant accepted NJP for being disrespectful in
language toward his superior commissioned officer.  His imposed punishment
was a forfeiture of $144.00 pay per month for 2 months, 15 days restriction
and 15 days extra duty.

9.  On 2 August 1972, the applicant underwent a separation medical
examination and was found fit for retention.

10.  On 3 August 1972, a Report of Mental Status Evaluation found the
applicant mentally responsible, able to distinguish right from wrong and to
adhere to the right, and had the mental capacity to understand and
participate in board proceedings

11.  On 4 August 1972, the unit commander recommended that the applicant be
required to appear before a board of officers convened under the provisions
of Army Regulation 635-212 for the purpose of determining whether the
applicant should be discharged before the expiration of his term of
service.  The recommendation was based on the applicant’s frequent
incidents of a discreditable nature.

12.  On the same day, the applicant consulted with legal counsel and 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, personal appearance before a board of
officers, and his right to counsel.

13.  On 14 August 1972, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 31 August
1972, the applicant was discharged accordingly.  The DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) issued to him
at the time, confirms the applicant completed a total of 2 years, 11
months, and 21 days of creditable active military service and that he
accrued a total of 2 days of time lost.

14.  The applicant’s Official Military Personnel File (OMPF) contains no
medical records nor does the applicant provides any medical documents that
indicate he was treated for or suffered from a psychologically or medically
disqualifying condition while he was on active duty, or at the time of his
discharge.

15.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in
1980 with the publishing of the Diagnostic and Statistical Manual of Mental
Disorders (DSM), and is described in pages 424 through 429 of the current
DSM.  However, at the time of the applicant’s discharge, the Army used
established standards and procedures for determining fitness for entrance
and retention and utilized those procedures and standards in evaluating the
applicant at the time of his discharge.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an
honorable discharge because he was and still is suffering from PTSD a
medical condition that impaired his ability to serve.

2.  The applicant’s contentions and the third-party statements provided by
the applicant that attest to his good character and post service were
carefully considered.  However, these factors are not found to be
sufficiently mitigating to warrant the requested relief.

3.  The evidence of record provides no indication that the applicant was
ever treated for or suffered from a disqualifying psychological or medical
condition while he was on active duty.  Although the applicant has now been
diagnosed with PTSD, this specific diagnostic label given to the applicant
more than three decades after his separation does not call into question
the application of then existing fitness standards that were applied at the
time of his discharge.

4.  The 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 undistinguished service for that
period of service.

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.  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 31 August 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 August 1975.  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

__PHM__  __DRG___  __RSV__  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.




                                          Patrick H. McGann___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/11                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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