MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 March 1999      
	DOCKET NUMBER:   AC98-09429
   AR1998000622

	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. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 changed to honorable.  He states that he wanted to reenlist in the Army but was precluded from doing so because he was married and had had prior military service.  In order to reenlist he lied about his marital status and “when the Army found that [he] had dependents [he] was given an undesirable discharge.”  He submits no evidence to support his claim other than a copy of his 1947 and 1949 separation reports.

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 were likely lost or destroyed during the 1973 fire at the National Personnel Records Centers.  Information contained herein was reconstructed from the two separation reports.

He initially enlisted and entered active duty on 20 November 1946 at the age of 16.  Two months and 1 day later, on 20 January 1947 he was honorably discharged from active duty as a “minority” [underage].

On 21 January 1949 he again enlisted in the Army and 3 months and 22 days later was separated with an undesirable discharge.  His separation document indicates he was discharged under the provisions of Army Regulation 615-366 for concealment of his ineligibility for enlistment.  The document also notes the applicant had 1 year, 9 months, and 19 days of US Navy service and 7 days of lost time.  Documents, which detail the exact circumstance relative to his 1949 separation action, are not available.

Army Regulation 615-366, in effect at that time, set forth the policy and procedures for separation of enlisted personnel for misconduct including, fraudulent entry, AWOL, desertion and conviction by civil court.  A service member who had been convicted of a felony and was in the custody of civil authorities could be discharged.  When separation for civil conviction was considered appropriate an undesirable discharge was issued.

On 6 November 1981 the Army Discharge Review Board denied the applicant’s petition to upgrade his undesirable discharge to honorable.  The board noted in its findings that it:

“was hampered in its review of this case because of the absence of records and the lack of information provided by the applicant.  The information in available records suggests that the applicant was eliminated because of fraudulent entry; however, the board could not determine the nature of the applicant’s problems and could not evaluate his overall quality of service or factors in mitigation.  In the absence of such information, the board was forced to conclude that command had properly characterized the applicant’s service at the time of discharge.”

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 November 1981, the date the Army Discharge Review Board finalized its review.  The time for the applicant to file a request for correction of any error or injustice expired on 6 November 1984.

The application is dated 30 April 1998 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

__fkm___  __mw____  ___klw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-09429/AR1998000622	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990310	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.142.00		
3.		
4.		
5.		
6.