MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            30 December 1998  
	DOCKET NUMBER:   AC98-10501

	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	
	Mr. Theodore Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Sherri V. Ward 		Member	
	Mr. Van B. Cunningham		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 to show his military service from 13 September 1974 to 11 October 1975.  The applicant states that upon applying for a copy of his DD Form 214, separation document, he discovered that the original had been lost in a fire.

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 enlisted on 14 August 1974 for a period of 3 years.  He entered active duty on 13 September 1974 and was assigned to Fort Polk, Louisiana to complete his initial training.  

On 19 September 1974, non judicial punishment (NJP) by Article 15, UCMJ, was imposed against him for AWOL from 1600 hours, 16 September 1974 to 0900 hours, 17 September 1974.  His punishment consisted of forfeiture of $40.00 for 1 month.

On 24 September 1974, he requested discharge under the provisions of Army Regulation (AR) 635-200, Chapter 5 based on erroneous enlistment.  He stated in his request that, at the time of his enlistment, he did not meet the enlistment standards as outlined in AR 40-501, Chapter 2.  The specific details of his medical unfitness for enlistment are not available in his records.

His DD Form 214 shows that he was separated with a medical discharge on 11 October 1974 under the provisions of AR 601-210, Table 2-7.  He had completed 29 days of creditable service with no lost time and his service was characterized as honorable.  

AR 40-501 pertains to standards of medical fitness.  Chapter 2, in effect at the time, pertains to physical standards for enlistment and states, in effect and in pertinent part, that medically qualified individuals must be free of contagious or infectious diseases that would likely endanger the health of other personnel; free of medical conditions or physical defects which would require excessive time lost from duty or would likely result in separation from service for medical unfitness; medically capable of satisfactorily completing required training; medically adaptable to the military environment without the necessity of geographical area limitations; and medically capable of performing duties without aggravation of existing physical defects or medical conditions.

AR 601-210 sets forth the basic authority for the Regular Army and Army Reserve Enlistment Program and states, in effect, that individuals must meet the medical fitness standard as prescribed in AR 40-501 to be considered medically qualified for enlistment.

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 11 October 1974, the date of his separation.  The time for the applicant to file a request for correction of any error or injustice expired on 11 October 1977.

The application is dated 18 June 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

________  ________  ________  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.