MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          6 January 1999     
	DOCKET NUMBER:   AR1998013797

	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. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		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 or general.  He states he was promised at the time of his separation that he would receive a general discharge but notes that it was not “until years later that [he] found [he] was discharged as an undesirable.”  The applicant notes he was young when he entered the Army and because he was underage had never had anything to drink until he was assigned to Europe at which time he “sort of went crazy...on the alcohol.”  He states that he now wants to join the local American Legion Post but needs at least a general discharge to do so.

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 and entered active duty on 22 June 1960 at the age of 20.  In July 1960, while undergoing basic training it was discovered that the applicant had concealed civilian convictions for breaking and entering and stealing in November and December 1959.  Following an administrative review and recommendation by the applicant’s commander the civilian convictions were waived and he was allowed to remain on active duty.

In January 1961 the applicant was assigned to Germany as an artilleryman.  He received unit punishment in March 1961 for missing bed check and in April 1961 for being AWOL.  In May 1961 he was convicted by a summary court-martial for AWOL and by a special court-martial for disobeying a lawful order.  In lieu of confinement the applicant was transferred to another unit “in an attempt at rehabilitation.”  By August 1961, after misappropriation of a vehicle, the applicant’s unit commander initiated action to administratively separate the applicant for unfitness.

The applicant acknowledged receipt of the proposed separation, including the fact that he understood the ramifications of receiving an undesirable discharge.  After consulting with counsel he waived his attendant rights.

The applicant underwent several physical examination between May and September 1961.  He indicated on one physical examination that he used alcohol excessively and that when he drank to much he would sometimes cough up blood.  However, the evaluating physicians in every case found the applicant medically qualified for separation with a physical profile of 1-1-1-1-1-1.  On
11 August 1961 a neuropsychiatric examination concluded the applicant possessed “sufficient mental capacity to know the difference between right and wrong and that he should be able to adhere to the right and refrain from wrong.” The evaluating psychiatrist recommended separation under the provisions of Army Regulation 635-208 for unfitness.

The proposed separation action was approved and on 19 September 1961 the applicant was separated with an undesirable discharge.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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 19 September 1961, 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 
19 September 1964.

The application is dated 13 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

___TDH__  __LLS___  ___CWB_  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director