MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         6 January 1999          
	DOCKET NUMBER:   AC97-09817
				   AR1998002327

	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		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 undesirable discharge to general, under honorable conditions.  The applicant states that he was young and very immature; and that the stress and harassment he was subjected to at the age of 17 lead him to tell his commander that the was a homosexual just to get out of the Army.

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 16 September 1965, he enlisted in the Regular Army for a period of 3 years.

On 9 February 1965, he was convicted by a summary court-martial for being absent without leave (AWOL) from 16 17 January 1965.  He was sentenced to confinement at hard labor for one month and forfeiture.

Between 8 March 1965 and 27 June 1965, the applicant was AWOL on five separate occasions.  

On 19 March 1965, an investigation by the Criminal Investigation Division (CID) was initiated as the result of the applicant’s alleged self-confessed homosexual tendencies. 

On 5 April 1965, a neuropsychiatric examination diagnosed that the applicant was a sexual deviate, homosexual; and recommended that he be separated from military service under the appropriate administrative regulation.

On 18 May 1965, the CID investigation was finalized, and disclosed that the applicant by his own admission, engaged in numerous acts of mutual oral sodomy.

On 2 June 1965, the applicant’s commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-89, and that he be furnished a general discharge as a Class II Homosexual.

On 10 June 1965, the applicant acknowledged that he had been informed of his rights under the provisions of Article 31, Uniformed Code of Military Justice.  He waived a hearing before a board of officers, and accepted a discharge for the good of the service.  He acknowledged that he understood the effects of receiving a discharge under conditions other that honorable; he declined legal counsel and did not desire to submit statements on his own behalf.  

On 23 June 1965, the appropriate separation authority approved the applicant’s separation under the provisions of Army Regulation 635-89, paragraph 6, and directed the he be furnished an undesirable discharge.

On 25 June 1965, a physical examination cleared the applicant for separation.

On 2 July 1965, the applicant was separated with an under conditions other than honorable discharge under the above cited regulation.  His Report of Separation indicates he had 7 months and 13 days of creditable time and 65 days of lost time.

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 2 July 1965, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 2 July 1968.

The application is dated 28 January 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