MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 January 1999        
	DOCKET NUMBER:   AC97-09087
				   AR1998002405

	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. Loren G. Harrell		Director	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		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:  That his records be corrected by upgrading his discharge to honorable.  The applicant states that at the time, he had family problems, that he was not given enough information or encouragement from his superiors to strive to improve himself; and that he was young and made immature decisions.  

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:

On 11 May 1979, he enlisted in the US Army Reserves for a period of 3 years.

On 7 August 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the periods 15-16 July 1979 and 17-31 July 1979.  His punishment was forfeiture, restriction and extra duty.

On 10 August 1979, while pending separation for numerous disciplinary problems, the applicant went AWOL, and remained so, until 14 August 1983.

The facts and circumstances of the applicant’s discharge proceeding are not in the available records, however on 16 August 1983, the applicant made a statement in which he admitted to being AWOL for the period 10 August 1979 to 14 August 1983.  He acknowledged that his military counsel had explained all the legal and social ramifications of an other than honorable discharge, and what it would mean to him in the future.

On 22 February 1984, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His Report of Separation indicates he had 6 months and 16 days of creditable service and 1,480 days of lost time.

Army Regulation 635-200, then in effect, set forth the basic authority of the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for with the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 22 February 1984, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 22 February 1987.

The application is dated 12 April 1997 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___tdh__  ___lls_____  __cwb___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director