RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 April 2007
      DOCKET NUMBER:  AR20060014985


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 upgrade of his undesirable discharge.

2.  The applicant states he was messed up in the head and walked away from
everything because he was so screwed up.  He had no idea what was wrong
with him.  He certainly did not know it was in his head but he still
suffers.  After being brought back, he was put under President Carter’s
Amnesty Program to give him a chance to straighten his life out.  But, he
still suffers and wants to take advantage of Department of Veterans Affairs
(VA) mental health benefits.  He has been told he has post-traumatic stress
disorder (PTSD) and depression as a result of combat.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 December 1974.  The application submitted in this case is
dated 16 October 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 enlisted in the Regular Army on 7 January 1969.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant arrived in Vietnam and was assigned to B Troop, 2d
Squadron, 17th Cavalry, 101st Airborne Division (Airmobile) on 20 June
1969.  He departed Vietnam on 26 April 1970.  He was awarded the Combat
Infantryman Badge, the Army Commendation Medal, the Bronze Star Medal, and
two awards of the Air Medal for his service while in Vietnam.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he
departed absent without leave (AWOL) on 13 June 1970.  He returned to
military control on or about 26 November 1974.

6.  On 6 December 1974, the applicant completed a separation physical.  He
indicated he was in good health and was not taking medication.  He was
found qualified for separation.

7.  On an unknown date, the applicant indicated he had been told by legal
counsel about the President’s Clemency Program.  He indicated he would sign
a Reaffirmation of Allegiance, a Pledge of Public Service, and accept an
Undesirable Discharge.

8.  On 6 December 1974, the applicant voluntarily requested discharge for
the good of the service pursuant to the provisions of Presidential
Proclamation Number 4313.  He had indicated in a statement to the Board for
Alternative Service that after he returned from Vietnam he was faced with
some family problems and left the service.

9.  On 6 December 1974, the applicant was discharged, with an undesirable
discharge and a characterization of service of under other than honorable
conditions, in pay grade E-1 after completing 1 year, 5 months, and 8 days
of creditable active service.  His DD Form 214 shows he had 569 days of
time lost prior to his normal expiration of term of service and 1,058 days
of time lost subsequent to his normal expiration of term of service.

10.  By letter dated 6 May 1975, the Selective Service System stated the
applicant was terminated from enrollment in the Reconciliation Service
Program and he did not complete his required period of alternate service.
The applicant was non-cooperative with efforts to place him on an
approvable (sic) job, and he had signed a statement declining to
participate.

11.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was
issued by President Ford and affected three groups of individuals.  One
group was members of the Armed Forces who were in an unauthorized absence
status. These individuals were afforded an opportunity to return to
military control and elect either a discharge under other than honorable
conditions under PP 4313   or to stand trial for their offenses and take
whatever punishment resulted.  For those who elected discharge, a Joint
Alternate Service Board composed of military personnel would establish a
period of alternate service of not more than 24 months that the individuals
would perform.  If they completed the alternate service satisfactorily,
they would be entitled to receive a Clemency Discharge.

12.  Public Law 95-126, dated 8 October 1977, statutorily barred VA
benefits for AWOLs greater than 180 days as well as for conscientious
objectors.

13.  Army Regulation 635-200 governs the separation of enlisted personnel.
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.

14.  Army Regulation 635-200, paragraph 3-7b, 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 contended he was messed up in the head and walked away
from everything because he was so screwed up, that he still suffers and
wants to take advantage of VA mental health benefits, and that he has been
told he has PTSD and depression as a result of combat.

2.  The Board is empathetic with the applicant’s current mental health
problems.  However, the evidence of record shows the applicant indicated he
was in good health at the time he separated and that he went AWOL after
departing Vietnam because he had family problems.  There is no evidence of
record to show that he did not know that going AWOL was wrong.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  Considering his lengthy
AWOL and the reason he gave for going AWOL, the type of discharge he was
given was appropriate.

4.  In addition, it appears Public Law 95-126 would statutorily bar the
applicant from receiving VA benefits (since his AWOL was for more than 180
days) even if his discharge were to be upgraded.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     5 December 1977.  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

__jev___  __phm___  __gjp___  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. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014985                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070424                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741206                                |
|DISCHARGE AUTHORITY     |PP 4313                                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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