MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 
	.

	BOARD DATE:          3 February 1999     
	DOCKET NUMBER:   AC98-12814
				   AR1998012327

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		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, the applicant requests that his under other than honorable discharge be upgraded to honorable.

He states that his first discharge under the name RAMNAUTH, HARBALACK, was honorable, and that his second discharge under the name of BISHOP, SAMUEL A., was less than honorable because of a dispute over some bonus money and other things.  He states that he was promised a reenlistment bonus of $15,000.00, was never paid that bonus, and asked to be discharged, and was discharged under other than honorable conditions.     

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:

The applicant, then a native of Guyana, was inducted into the Army on 
11 August 1972.  On 23 January 1973 he received nonjudicial punishment under Article 15, UCMJ, for AWOL from 15-21 January 1973.  He completed training as an infantryman, and was assigned to an infantry unit in Germany.  On 
1 February 1974 he was promoted to pay grade E-4.  On 22 May 1974 he received nonjudicial punishment for disobeying a lawful order.  He was released from active duty with an honorable characterization of service on 15 August 1974 at Fort Dix, New Jersey, and transferred to the Reserve Control Group (Annual Training) at St. Louis.  He had 2 years and 5 days of service.  His name at the time of his induction and release from active duty was RAMNAUTH.

The applicant reenlisted in the name of BISHOP, SAMUEL ARTHUR, for 4 years on 10 March 1975.  His enlistment document shows that his name was changed from RAMNAUTH through naturalization on 25 February 1975.  Both his first and this enlistment show the same social security number.  He reenlisted for an assignment in Europe, and in April 1975 was assigned to an infantry unit in Germany.

On 17 July 1975 he received nonjudicial punishment for disobeying a lawful order.  On 4 September 1975 he again received nonjudicial punishment, for disrespect to an NCO.  He received nonjudicial punishment again, on 
21 January 1976 for unlawfully carrying a concealed weapon, and again on 
20 December 1976 for being absent from his place of duty.

On 23 February 1977 court-martial charges were preferred against the applicant for theft, possession of marijuana, and for breaking restriction on six separation occasions.

A 23 February 1977 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile series of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination, he stated that he felt that he was in good health.  A 23 February 1977 report of mental status evaluation indicates that the applicant had no significant mental illness, was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the standards for retention in the Army. 

On 25 February 1977 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he understood that charges had been preferred against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he acknowledged that he was guilty of the charges, or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.
He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He did not submit statements in his own behalf.

On 15 March 1977 the separation authority approved the applicant’s request and directed that he be discharged under other than honorable conditions. 

The applicant was reduced to Private E-1 on 15 March 1977 and assigned to the Fort Dix, New Jersey transfer station for discharge with a reporting date of 
31 March 1977 and a discharge date of 2 April 1977. 

On 29 August 1977 the Fort Dix, New Jersey commander requested that the applicant be eliminated from the Army under the provisions of Army Regulation 635-200, chapter 10.  That official stated that the applicant reported to Fort Dix from Germany, stated that he had been assigned to Fort Dix and that while on leave all his records and orders were destroyed in a fire.  Investigation proved that the applicant had been returned to Fort Dix for discharge under the provisions of Chapter 10, and that he had a 2 April 1977 separation date.  The Fort Dix official stated that the applicant was AWOL from 2 April 1977 to 
2  June 1977 and that his current status was AWOL.   

On 28 October 1977 the Army Military Personnel Center approved the request.   

The applicant was discharged in absentia on 4 November 1977 under other than honorable conditions under the provisions of Army Regulation 635-200, 
chapter 10, at Fort Dix.  He had 2 years, 3 months, and 20 days of service, and 128 days of lost time, and was AWOL at the time of his discharge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 4 November 1977, the date of his discharge.  
The time for the applicant to file a request for correction of any error or injustice expired on 4 November 1980.

The application is dated 19 March 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

___sac__  __fkm___  __mdm___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12814	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990203	
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         1.142.00		
2.110.00		
3.		
4.		
5.		
6.