MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         14 January 1999         
	DOCKET NUMBER:   AC97-10409
				   AR1998007355

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		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, disability retirement or separation.  He states, in effect, that his medical conditions were exacerbated by events that occurred while he was in the military.  He notes medical personnel should have recognized and treated him for depression while on active duty and that his “substance abuse” problem should also have been recognized and treated as well.  He states, in effect, that an assault he was subjected to while on active duty resulted in back pain and eye problems.  (Note:  The applicant is also requesting that the Board provide him with copies of his service medical records to assist him a in VA disability claim.  Copies of such records are not in his available military personnel file and as such the Board is unable to assist the applicant in that request.  The Board suggests he pursue attempts to secure any extant medical records via his servicing VA office.)

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:

He entered active duty on 25 November 1972 and successfully completed basic and advanced individual training as a truck driver prior to being assigned to Germany in April 1973.

In April 1974 the applicant’s unit commander recommended he be administratively discharged under the Army’s Expeditious Discharge Program (EDP) with an honorable characterization of service.  The commander cited the applicant’s “defective attitudes and a lack of appropriate interest in many ways” as the basis for his recommendation.  He noted the applicant had been punished twice under Article 15 of the UCMJ and counseled repeatedly (in excess of 50 times) on his poor standards of appearance and failure to take any noticeable corrective action.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.

The appropriate authority approved the recommendation for discharge and directed that the applicant be issued an Honorable Discharge Certificate.  Accordingly, he was discharged on 6 May 1974.

In l974, the Department of the Army authorized the Commander in Chief, United States Army Europe to test a new discharge program, entitled the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated under the EDP.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating as a result of that disability.  There is no evidence, and the applicant has not provided any, which confirms he should have been referred for disability processing.

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 6 May 1974, the date applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 6 May
1977.

The application is dated 25 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

__rvo___  __slp___  ___kan___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.