RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20070000659


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was suffering from a Post
Traumatic Stress Disorder (PTSD) when he returned from the Republic of
Vietnam (RVN), which caused extreme difficulties with his superiors when he
returned stateside.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Psychologist Statement; Third-Party
Character Reference Statements; and Separation Document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 May 1973, the date of his discharge.  The application
submitted in this case is dated 3 January 2007.

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 24 September 1970, and he was trained in, awarded
and served in military occupational specialty (MOS) 64A (Light Vehicle
Driver).  Documentation on file confirms a moral waiver was required for
the applicant to enlist based on his civil conviction for burglary on 12
December 1965, at the age of 12, and for two speeding offenses he committed
at the age of 16.

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to private fist
class (PFC) on 12 July 1971, and this was the highest rank he attained
while serving on active duty.  It also shows he was reduced to private/E-2
(PV2) on 17 November 1972 and to private/E-1 (PV1) on 9 May 1973.

5.  The applicant's DA Form 20 shows he served in the RVN for four months,
from 28 February 1972 through 1 July 1972.  Item 38 (Record of Assignments)
shows that during his RVN tour, he was assigned to the United States Army
Depot, Long Binh, RVN, performing duties in MOS 64C as a motor
transportation operator.

6.  Item 44 of the applicant's DA Form 20 shows that the applicant accrued
92 days of time lost during four separate periods of being absent without
leave (AWOL) between 11 July 1972 and 29 March 1973, and one period of
confinement from 29 January through 27 February 1973.

7.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ).

8.  On 7 April 1971, the applicant accepted NJP at Fort Hood, Texas, for
failing to go to his appointed place of duty at the time prescribed.  His
punishment for this offense was a forfeiture of $30.00 and 7 days of extra
duty.

9.  On 19 May 1972, while serving in the RVN, the applicant accepted NJP
for sleeping on guard duty in a combat zone.  His punishment for this
offense was a reduction to PV1 and a forfeiture of $100.00 per month for
two months.

10.  On 6 June 1972, while serving in the RVN, the applicant accepted NJP
for two specifications of failing to go to his appointed places of duty at
the prescribed times.  His punishment for these offenses was a forfeiture
of $50.00 and 10 days of extra duty.

11.  On 17 November 1972, while serving at Fort Hood, Texas, the applicant
accepted NJP for being AWOL from 22 September through 10 October 1972.  His
punishment for this offense was a reduction to PV2 and a forfeiture of
$50.00.

12.  On 29 January 1973, while he was in an AWOL status, the applicant was
apprehended by civil authorities for the criminal use of drugs and illegal
possession of dangerous drugs, and he was returned to military control on
27 February 1973.

13.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
Report of Medical History (SF 93) and Report of Medical Examination (SF 88)
that were prepared on the applicant during his separation processing.  The
SF 93 contains a statement from the applicant indicating he was in good
health.  The SF 88 contains normal clinical evaluations in all areas, to
include psychiatric, and gives no indication that the applicant was
suffering from a physically or mentally disabling condition at the time.
The examining physician assigned the applicant a Physical Profile of 111111
and a Physical Category of A, and the applicant was medically cleared for
separation.

14.  The applicant's record is void of the specific facts and circumstances
surrounding his separation processing.  The record does contain a properly
constituted DD Form 214 that shows he was separated under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service and that
he received an UD on 18 May 1973.  The DD Form 214 confirms that as of the
date of his discharge, he had completed a total of 2 years, 4 months, and
22 days of creditable active military service and that he had accrued 92
days of time lost due to AWOL and confinement.

15.  The applicant provides a letter from a Department of Veterans Affairs
(VA) Psychologist, dated 20 December 2006.  In this letter, the
Psychologist indicates that she interviewed the applicant about his
experiences during and after he served in the RVN, and concluded the
applicant was very probably suffering from acute distress disorder after he
returned from the RVN and from a PTSD ever since.  He also provides three
character reference statements that attest to the applicant's good moral
character, his honesty and his excellent work ethic.

16.  There is no indication that the applicant petitioned the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the
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.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge (GD) if such is merited by the Soldier's overall
record during the current enlistment.  An HD is not authorized unless the
Soldier's record is otherwise so meritorious that any other
characterization clearly would be improper.  At the time of the applicant's
discharge the regulation provided for the issuance of an UD.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded
because he was suffering from a PTSD after his return from the RVN and
based on his excellent post service conduct was carefully considered.
However, these factors are not sufficiently mitigating to support an
upgrade of his discharge at this late date.

2.  The evidence of record confirms the applicant’s disciplinary problems
began in his youth, as evidenced by the fact a moral waiver was required to
allow him to enlist.  It also shows that his record of disciplinary
infractions on active duty began prior to his assignment to the RVN and
continued throughout his service, as evidenced by his record of NJP and
time lost.  Further, there is no indication that the applicant suffered
from a disabling physical or mental condition that would have mitigated his
misconduct at the time of his discharge, as evidenced by the SF 93 and SF
88 completed on him during his separation processing.

3.  The available evidence does not include a separation packet that
contains the specific facts and circumstances surrounding the applicant’s
final discharge processing.  However, it does include a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s final discharge.  Therefore, Government regularity in the
discharge process is presumed.

4.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  In connection with such a discharge, he was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.  Procedurally, he was required to consult with defense counsel, and
to voluntarily request separation from the Army in lieu of trial by court-
martial.  In the absence of information to the contrary, it is concluded
that all requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.

5.  The applicant's excellent post service conduct and accomplishments, as
documented in the third-party statements provided, are noteworthy.
However, these factors alone are not sufficiently meritorious to support
granting the requested relief.  Given the applicant's extensive
disciplinary history, the UD he received was normal and appropriate under
the regulatory guidance, and his overall record of undistinguished service
clearly did not support a GD or HD at the time, nor does it support an
upgrade now.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 May 1973, the date of his
discharge.  Therefore, the time for him file a request for correction of
any error or injustice expired on 17 May 1976.  He failed to 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

___JTM _  __WFC__  __DAC __  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 T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000659                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/28                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/05/18                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |Good of the Svc                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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