RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060008499


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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)
which was upgraded to a general discharge (GD), under the Special Discharge
Review Program (SDRP), be upgraded to honorable.

2.  The applicant states, in effect, that his records are in error or
unjust due to the recent discovery of his PTSD (Post Traumatic Stress
Disorder) diagnosis.  The VA (Veterans Administration) is questioning his
entitlement because he was originally issued a "UOTHC" (under other than
honorable conditions) discharge which barred him from attaining any VA
entitlements.  At the time of issuance of his UOTHC discharge, the medical
community had not developed the diagnosis of PTSD.  The Army was forced to
use his performance during the last few months of service as evidence in
his case.  His performance has since been reevaluated and determined to be
a direct result of traumatic combat situations, where his unit received
overwhelming casualties.  His enclosed medical records, while in country,
reflect what was thought to be a personality disorder, currently known as
PTSD.

3.  He states that on 7 April 2005, the VA determined that a service
related diagnosis of PTSD set aside the bar to benefits imposed by the
original discharge.  He recently received a letter from the VA stating that
this decision was in error.  There was no further explanation.  He adds
that he had been seen and diagnosed at the VA in Seattle, Washington.

4.  The applicant adds that for the majority of this military service, he
excelled in the performance of his duties and was rewarded with rapid
promotions and honors.  However, after many months of combat, he began to
experience significant mental and emotional issues which were subsequently
diagnosed as PTSD.

5.  He continued to experience chronic and severe symptoms of PTSD and it
is vital that he receive treatment for this disorder.  Since it is a direct
result of his military service, it is appropriate for the VA to provide
this care.

6.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), a copy of a statement from
the Seattle Veterans Center, a copy of his VA (Veterans Affairs) Rating
Decision, a copy of a Standard Form (SF) 600 (Chronological Record of
Medical Care), and a copy of his Presidential Clemency Board, case summary,
in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 January 1970, the date of his discharge.  The application
submitted in this case is dated 31 May 2006 but was received for processing
on 8 June 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 he enlisted in the Regular Army on
30 August 1968.  The applicant successfully completed basic combat training
and advanced individual training at Fort Lewis, Washington.  On completion
of his OSUT (one station unit training), he was awarded the military
occupational specialty (MOS) 11B, Light Weapons Infantryman.  He was
advanced to pay grade E-3 on 5 February 1969.

4.  The applicant served in Vietnam from 27 May 1969 to 22 January 1970.
He was awarded the National Defense Service Medal, the Vietnam Service
Medal, the Republic of Vietnam Campaign Medal, the Parachutist Badge, the
Combat Infantryman Badge, and one Overseas Service Bar.

5.  Between 21 September and 27 October 1969, the applicant received
nonjudicial punishment on three occasions under Article 15, of the Uniform
Code of Military Justice (UCMJ), for failure to obey a lawful order by a
commissioned officer, for wrongful possession of marijuana, and for
sleeping at his post, while posted as a sentinel.  His punishments
consisted of a reduction to pay grade E-2 and E-1, forfeitures of pay, and
restriction and extra duties.

6.  The applicant provides a copy of a SF 600 which shows that he was seen
on 8 December 1969 based on a unit referral.  This SF 600 indicates that he
seemed determined to avoid service.  He was diagnosed as having a passive
aggressive personality; chronic, moderated to severe, EPTS (existed prior
to service), LOD (line of duty); No.  He was cleared for administrative
action.



7.  Charges were preferred against the applicant on 18 December 1969, for
failing to go to his appointed place of duty, bunker detail, and for
failing to obey a lawful order from a noncommissioned officer.  Charges
were also preferred on 31 December 1969, for his wrongfully killing a
monkey, belonging to his command, and for wrongfully possessing marijuana.


8.  On 1 January 1970, the applicant voluntarily submitted a request for
discharge for the good of the service, in lieu of trial by court-martial. 
In his request the applicant stated he understood he could request
discharge for the good of the service because charges had been filed
against him under the UCMJ, which could authorize the imposition of a bad
conduct or dishonorable discharge.  He added that he was making his request
of his own free will and had not been subjected to coercion whatsoever by
any person.  The applicant stated he had been advised of the implications
that were attached to his request and that by submitting his request, he
acknowledged that he was guilty of the charge against him or of a lesser or
included offense which also authorized the imposition of a bad conduct or a
dishonorable discharge. 

9.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an undesirable discharge.  He was advised and understood the
effects of an under other than honorable conditions discharge and that
issuance of such a discharge could deprive him of many or all Army benefits
that he might be eligible for, that he might be ineligible for many or all
benefits administered by the Veterans Administration [now the Department of
Veterans Affairs], and that he might be deprived of his rights and benefits
as a veteran under both Federal and state law.  He also understood that he
could expect to encounter substantial prejudice in civilian life because of
an under other than honorable conditions discharge.

10.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on the same date and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that once his request was submitted, it may
be withdrawn, whether or not accepted, only with the consent of the
commander exercising general court-martial jurisdiction over him.





11.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
opted to submit a statement in his own behalf.  He stated that he requested
separation from the Army because it was the most expedient and advantageous
course of action for himself and the Army.  He had severe personal problems
and had constant problems in the service.  He and the Army were not suited
for one another and for this, he was sorry.  He requested a general
discharge rather an undesirable discharge (UD) because he felt the alleged
offenses did not merit a UD.  Any problems he had encountered within the
Army system had not been voluntarily willed by him but seemed rather
something which he could not avoid.  He planned to attend college after his
separation and a UD would be a large and an unfair drawback.

12.  On 20 January 1970, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

13.  The applicant was discharged on 25 January 1970 in the rank and pay
grade of Private/E-1.  He completed a total of 1 year, 4 months, and
25 days of creditable service.

14.  On 6 October 1971, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

15.  All the applicant's service medical records are unavailable for
review.

16.  The applicant provides a copy of his Presidential Clemency Board, case
summary.  The applicant's case was considered on 21 May 1975.  The case
summary lists his record of service and disciplinary infractions.

17.  The applicant reapplied to the Army Discharge Review Board (ADRB) for
an upgrade of his discharge under the Department of Defense (DOD) SDRP on
27 April 1977.  The mitigating factors inherent in the secondary criteria
were considered and found not to be factors in extenuation.  His record of
service was not sufficiently meritorious to warrant an honorable discharge
notwithstanding the fact that he met one or more of the primary or
secondary criteria.  The ADRB voted to grant relief in the form of an
upgrade of the characterization of his service to general, under honorable
condition, on 17 August 1978.



18.  The applicant provides a copy of his VA Rating Decision, page 2, which
shows that he was granted 70 percent disability for PTSD, effective
28 December 2001.

19.  The applicant provides a copy of a letter from the Seattle Vet Center,
Seattle, Washington.  The letter states that the applicant had been in
treatment at the Seattle Vet Center since 25 September 2002.  During this
treatment, he had exhibited symptoms of PTSD which were a direct result of
his service in Vietnam with a combat unit.  The issue of him not receiving
benefits from the VA for his disabilities was not due to the lack of
evidence proving the stressors were military related.

20.  The letter also stated that the decision to deny him his benefits was
determined by his discharge.  He originally received a UOTHC discharge
which was later change to a GD, under honorable conditions.  It was their
understanding that the reason for denial of benefits was the way the
original discharge was awarded and that there were no "mitigating"
circumstances to change the denial of benefits even with the upgrade to
honorable.  The letter states that the applicant was in good standing until
the last few months of his active duty tour.  It was not until after combat
that he began to experience severe trauma on the battlefield and that he
began to have personality issues that resulted in negative actions and a
UOTHC discharge.

21.  In conclusion, the letter states that the applicant's actions, which
resulted in his original UOTHC discharge, were a direct result of his
development of PTSD. If VA continues to deny the applicant VA benefits that
were a direct result of symptoms of PTSD which were cause by combat, they
would be doing a general disservice to the applicant and devaluing his
sacrifices for his country.

22.  Army Regulation 635-200 sets forth the basic authority for 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
undesirable discharge.




23.  Army Regulation 635-200, paragraph 3-7a, 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, 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.  The SDRP, often referred to as the "Carter Program," was announced on
29 March 1977.  The program mandated upgrade of administrative discharges
if the applicant met one of seven specified criteria to include various
aspects of service in Vietnam.  Reasons for granting an upgrade under
secondary criteria include age, aptitude, education level, alcohol/drug
problems, record of citizenship, etc.

25.  Public Law 95-126, enacted on 8 October 1977, provided generally, that
no
VA benefits could be granted based on any discharge upgraded under the Ford
memorandum of 19 January 1977, or the DOD SDRP.  It required the
establishment of uniform published standards, which did not provide for
automatically granting or denying a discharge upgrade for any case or class
of cases.  The services were then required to individually compare each
discharge previously upgraded under one of the special discharge review
programs to the uniform standards and to affirm only those cases where the
case met those standards.

26.  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 Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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.





27.  VA Pamphlet 80-06-1 (Federal Benefits for Veterans and Dependents)
describes the variety of Federal benefits available to veterans and their
dependents.  Eligibility for most benefits is based upon discharge from
active military service under other than dishonorable conditions.
Honorable and general discharges qualify a veteran for most VA benefits.
Dishonorable and bad conduct discharges which result from general court-
martial may bar VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant’s discharge was upgraded to general (under honorable
conditions) under the SDRP on 17 August 1978.  However, this upgrade was
not affirmed under the provisions of discharge review standards established
by the Department of the Army in accordance with Public Law 95-126.

4.  The evidence shows that the applicant had behavioral problems.  He had
been administered non-judicial punishment on three occasions and court-
martial charges were preferred against him twice which led to his request
for discharge rather than his facing court-martial.

5.  The applicant's statement from the Seattle Vet Center, VA Rating
Decision, and SF 600 were considered; however, they were not sufficiently
mitigating to warrant an upgrade of his GD to honorable.

6.  The evidence of record clearly shows that it has been approximately
28 years since he applied to the ADRB under the DOD SDRP for an upgrade of
his UD.    It is noted that there is no evidence to show that he reapplied
to the ADRB for further upgrade of his GD (under honorable conditions)
within its 15-year statute of limitations.





7.  The applicant contends that his records are in error or unjust due to
his recent discovery of his PTSD diagnosis.  It is noted that he was
diagnosed as having a passive aggressive personality; chronic, moderated to
severe, EPTS, LOD; No, and was cleared for separation.  His medical records
are unavailable for review.  After his discharge, he was later granted
70 percent disability for PTSD, effective 28 December 2001.

8.  It is apparent that VA is now questioning his entitlements because he
was originally issued an undesirable discharge, with his service
characterized as UOTHC, which barred him from attaining any VA
entitlements.  He now states that he has recently received a letter from VA
stating that their decision was in error, with no further explanation;
however, he was seen and diagnosed at the VA in Seattle, Washington.  This
letter is unavailable for review.

9.  The Board does not change the character of service for the purpose of
enabling former service members to obtain eligibility for benefits.  The
Board has no authority to direct the VA to award benefits.  Since most VA
benefits are based on an individual's service, eligibility depends on the
circumstances.  The applicant is advised to contact the nearest VA office
to seek their assistance in determining his rights and entitlements.

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

11.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 August 1978.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 16 August 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

_BPI ____  __RDG__  __EM___  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.




                                  _____Bernard P. Ingold_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008499                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19700125                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]