MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        30 December 1998      
	DOCKET NUMBER:   AC98-12809
				   AR1998012333

	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:  Disability retirement.  He states that he successfully completed basic and advanced individual training without any problems.  He notes that two months after he arrived at his first duty station he “became ill (paranoid schizophrenia) and began having trouble.”  He notes that the Army failed to recognize and treat his illness and “proceeded to discharge [him] with a less than honorable discharge.”

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 May 1979 and successfully completed basic and advanced individual training prior to being assigned to Fort Bragg, North Carolina in September 1979.

In April 1980 he commenced a series of AWOL periods which culminated in a total of 39 days of AWOL, including being dropped from the rolls of the Army on 30 June 1980.  When the applicant returned from his last period of AWOL (on 14 July 1980) he apparently requested separation in lieu of trial by court-martial. He was placed, at his request, in an excess leave status effective 24 July 1980 “until [his] discharge has been received.”

While documents associated with the applicant’s administrative separation action are no longer part of the records available to the Board, the applicant’s original service medical records contain a mental status evaluation report which found the applicant to be fully alert and oriented, that his thinking process was clear and that his thought process was normal.  The evaluating physician concluded the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  There is no evidence in the applicant’s extensive service medical records that he ever exhibited any schizophrenic episodes.

On 20 August 1980 the applicant was discharged under other than honorable conditions based on the provisions of Army Regulation 635-200, Chapter 10.

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.

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 20 August 1980, the date he 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 
20 August 1983.

The application is dated 21 January 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

__gdp___  __svw___  __vbc___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director