MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:        30 December 1998      
	DOCKET NUMBER:   AC98-12812
				    AR1998012313

	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. 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 undesirable discharge be upgraded to honorable.  He states that his “severe psychological problems caused [him] to get this discharge.”  He notes that he has been receiving treatment for “the past ten years” and began living with his son in 1997.  He states that he was an alcoholic before he entered the Army and his “health was such that they never should have taken [him] in the service.  In support of his request he submits an undated psychological evaluation.

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 was inducted and entered active duty on 25 March 1969 at the age of 20 with 8 years of formal education.  He indicated his health was “good” on his induction physical examination.

On 5 May 1969, while undergoing basic training the applicant departed AWOL.  He was apprehended and returned to military control on 19 June 1969 and convicted by special court-martial.

The applicant again departed AWOL on 2 August 1969.  He was apprehended and returned to military control on 7 August 1969 and punished under Article 15 of the UCMJ.

On 13 August 1969 the applicant departed AWOL for a third time.  He was apprehended and returned to military control on 13 October 1969.  When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

The medical history, which he submitted for his medical examination for separation, indicated his health was “good” and the evaluating physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.

The appropriate separation authority approved the request and directed that an undesirable discharge be issued.  On 21 November 1969 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had 3 months and 3 days of creditable service and more than 100 days lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

In 1984 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.

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 in 1984, the year the Army Discharge Review Board completed their action.  The time for the applicant to file a request for correction of any error or injustice expired in 1987.

The application is dated 20 August 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

___GDP__  __SVW__  _VBC___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director