MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 JUNE 2003                  
	DOCKET NUMBER:   AR2003084677

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Marla J. Troup		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge be corrected to show that he was discharged by reason of disability and that his discharge be changed to a general discharge.  He states that he was suffering from PTSD (posttraumatic stress disorder) "at the time of the incident" and continues to receive treatment for that disorder today.  He submits no evidence in support of his request.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty on 29 October 1968.  He was one month shy of his 20th birthday when he enlisted.  

In February 1969, while undergoing advanced individual training, the applicant was punished twice under Article 15 of the Uniform Code of Military Justice; once for being disrespectful to a "superior noncommissioned office who was then in the execution of his office" and once for breaking restriction and failing to report to his place of duty.

In April 1969, following successful completion of training, the applicant was assigned to Vietnam as crew chief.  While in Vietnam the applicant received excellent conduct and efficiency ratings, in spite of being punished once under Article 15 of the Uniform Code of Military Justice for being disrespectful.  He was also awarded an Aircraft Crewman Badge while in Vietnam.

In April 1970 the applicant returned to the United States and was assigned to Fort Eustis, Virginia to undergo training in a new specialty.

On 23 September 1970 the applicant departed AWOL (absent without leave) and remained so until returning to military control on 20 October 1970.  He again departed AWOL on 20 November 1970 and was subsequently apprehended by civilian authorities on 30 May 1971.  He was returned to military control at Fort George G. Meade, Maryland.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

The medical history, which he submitted for his medical examination for separation, indicated he suffered from depression and excessive worry.  However, the evaluating physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.

On 1 July 1971 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10 and was issued an undesirable discharge certificate.  He had 2 years and 17 days of creditable service and more than 200 days of lost time.

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 undesirable discharge.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, and the applicant has not provided any that he was suffering from PTSD at the time of his voluntary request for separation.  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 that requirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 July 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 1 July 1974.

The application is dated 31 December 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __HOF__  __MJT __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2003084677	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030617	
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.	108.00	
2.		
3.		
4.		
5.		
6.