RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20070001452


      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      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Hassenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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)
of
27 September 1974 be changed to a medical discharge and that his rank be
restored to specialist five/E-5 (SP5/E-5).

2.  The applicant states, in effect, that he served in the Army honorably
from July 1969 to January 1972, and was separated in the rank of SP5/E-5.
He claims that after he enlisted on 29 April 1974, he attempted suicide by
overdose and mental health recommended he be separated from the service;
however, he received an UD on 27 September 1974.

3.  The applicant provides the following documents in support of his
application:  Enlisted Qualification Record (DA Form 20); Military Medical
Records; Separation Packet; Separation Documents (DD Forms 214); Social
Security Earnings Statement; and Medical Progress Notes.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 September 1974, the date of his discharge.  The
application submitted in this case is dated 1 August 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 initially enlisted in the Regular
Army and entered active duty on 25 July 1969.  He was initially trained in,
awarded, and served in military occupational specialty (MOS) 64C (Motor
Transport Operator), and he attained the rank of SP5/E-5 on 29 October
1971.

4.  On 25 January 1972, the applicant was honorably released from active
duty after completing 2 years, 6 months, and 1 day of active military
service.  The DD form 214 he was issued shows he held the rank of SP5/E-5
and that he earned the National Defense Service Medal, Armed Forces
Expeditionary Medal-Korea, and the Sharpshooter Marksmanship Qualification
Badge with Rifle Bar during this period of active duty.
5.  On 29 April 1974, the applicant enlisted in the Regular Army and
reentered active duty.  He was assigned to Fort Polk, Louisiana, to attend
advanced individual training in MOS 11B (Infantry).

6.  On 18 June 1974, the applicant accepted non-judicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for failure to repair.

7.  On 19 June 1974, the applicant departed absent without leave (AWOL)
from his organization at Fort Polk.  He was dropped from the rolls of the
organization on 18 July 1974, and he remained away until returning to
military control at the Personnel Control Facility at Fort Sill, Oklahoma,
on 12 September 1974.

8.  On 13 September 1974, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 19 June 1974 to on or
about
12 September 1974.

9.  On 13 September 1974, the applicant underwent a separation physical
examination at the United States Army Hospital, Fort Sill.  The Clinical
Evaluation portion of the Report of Medical Examination (SF 88) shows he
was found normal in all areas, to include psychiatric.  The examining
physician noted no defects and the applicant was given a 111111 physical
profile.  The examining physician found the applicant qualified for
retention/separation and medically cleared him for separation processing.

10.  On 18 September 1974, the applicant consulted with legal counsel and
was advised of the basis for the contemplated court-martial and the maximum
permissible punishment authorized under the UCMJ, and of the possible
effects of an UD if his request for discharge were approved.  Subsequent to
this counseling the applicant voluntarily requested discharge for the good
of the service in lieu of trial by court-martial under the provisions of
chapter 10,
Army Regulation 635-200.

11.  In his request for discharge, he acknowledged that by submitting the
request for discharge, he was admitting guilt of the charge against him, or
of a lesser included offense therein, which also authorizes the imposition
of a bad conduct or dishonorable discharge.  He further stated that under
no circumstance did he desire further rehabilitation, for he had no desire
to perform further military service.

12.  The applicant acknowledged that he understood that if he received an
UD, he would be deprived of many or all Army benefits, that he could be
ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  Finally, he
acknowledged that he understood that he could expect to encounter
substantial prejudice in civilian life as a result of receiving an UD.

13.  On 24 September 1974, the separation authority approved the
applicant's request for discharge and directed he receive an UD and that he
be reduced to the lowest enlisted grade in accordance with the applicable
regulation.  On
29 September 1974, the applicant was discharged accordingly after
completing
1 month and 19 days of creditable active military service during the
enlistment under review and accruing 100 days of time lost due to AWOL and
confinement.

14.  The applicant provides medical treatment records that show he was
treated for an overdose and attempted cutting of his left wrist in May
1974.  These documents also contain a recommendation for separation and
referral for consultation with a military or civilian agency.  They do not
contain a recommendation for disability processing through medical
channels.

15.  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.  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 UD.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

17.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.

18.  Army Regulation 600-200, in effect at the time the applicant's
discharge, provided the policy for enlisted promotions and reductions.
Paragraph 7-26b(3) stated that the commander having separation authority
would, when directing an UD under other than honorable conditions would
direct the Soldier to be reduced to PV1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should have been medically
discharged and that his rank should be restored to SP5/E-5 was carefully
considered.  However, the evidence of record confirms the applicant was
charged with the commission of an offense punishable under the UCMJ with a
punitive discharge. After consulting with defense counsel, he voluntarily
requested discharge in lieu of trial by court-martial.  All requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process. Further, the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

2.  The record further shows that although the applicant was treated for a
drug overdose and an attempt to cut his wrist, which resulted in a
separation recommendation, there is no indication these conditions were
physically disabling or supported his processing through medical channels.
Further, he was subsequently found medical qualified for
retention/separation and cleared for separation by competent medical
authority during his separation processing.

3.  Absent any evidence that the applicant suffered from a disqualifying
physical or mental condition that would have supported his processing
through medical channels at the time of his discharge, there is an
insufficient evidentiary basis to grant the applicant's request to change
his UD to a medical discharge, or to support a restoration of his grade,
which was based on his receiving an UD.

4.  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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 September 1974, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 26 September 1977.  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

___KAN _  __DKH __  __LMD__  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.




                                  _____Kathleen A. Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001452                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/20                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/09/27                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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