MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           29 April 1999  
	DOCKET NUMBER:   AR1998013832

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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 discharge under other than honorable conditions be changed to an honorable discharge, or a discharge for physical disability.

He was beaten up while in the service, tried to change units, but could not.  The unit pressured him so much that he finally went AWOL, and then was sent home. He was put in the hospital for fatigue at the time of the beating.  His health is very poor.  He was wronged while in the Army. 

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 enlisted in the Army for three years on 11 August 1959, completed training, and was reassigned to an artillery battery in Germany. 

On 1 June 1960 the applicant received nonjudicial punishment for being disrespectful in language toward an NCO.

A 24 June 1960 statement from a psychiatrist indicates that the applicant was having difficulties in his unit, and recently had become a behavior problem.  He had no severe mental impairment, was able to tell right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  There were no psychiatric grounds for discharge under the provisions of Army Regulation 635-209, nor any grounds that would preclude discharge under the provisions of AR 635-208.

On 25 July 1960 the applicant was arraigned and tried before a special court martial which convened at Grafenwohr, Germany.  He was found guilty of absenting himself from his unit without proper authority and with intent to avoid a field exercise on 17 June 1960; and found guilty of AWOL from 2 July 1960 until 18 July 1960. 

A 12 August 1960 statement from a psychiatrist indicates that the applicant was transferred to an Army hospital in Nurnberg because of possible schizophrenic episode.  The applicant did not talk, had been behaving disorderly, was AWOL, refused to work, and gave no history or other information, except that he did not feel good.  In an interview, the applicant appeared to be somewhat hostile and inadequate.  He showed no evidence of a schizophrenic disorder.  He demonstrated massive inadequacy in the performance of his duties.  His condition was diagnosed as inadequate personality, that existed prior to his service.  He was returned to duty.  The psychiatrist recommended that serious consideration be given to elimination from the Army under the provisions of Army Regulation 635-209.

On 17 October 1960 the applicant was arraigned and tried before a summary court-martial and found guilty of wrongfully appropriating clothing and equipment from another soldier,

On 9 December 1960 the applicant received nonjudicial punishment for being disrespectful in language toward an NCO.

A 15 December 1960 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he stated that he was in perfect health.

On 15 December 1960 the applicant stated that he had been notified and counseled by his commanding officer that he (his commanding officer) was recommending that he be discharged under the provisions of Army Regulation 635-208 for unfitness.  He stated that military counsel had been made available to him, and that he was notified of his right to employ civilian counsel.  He declined the opportunity to request counsel.  He waived his right to a hearing before a board of officers and did not submit statements in his behalf.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive. 

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged under the provisions of Army Regulation        635-208.  He stated that the applicant had displayed a disregard for authority and the rights of others, that he had been involved in disciplinary actions, and involved in indebtedness.  His conduct and behavior affected his section’s mission performance, and detracted from unit discipline and proficiency.  He stated that the applicant had been assigned to three different sections within the unit, and in each case had proven unreliable, unpredictable, and generally useless.  He had been counseled repeatedly.  He had made a negligible effort to perform his duties, was capable, but failed to do so.  Statements from two officers, both of whom were the applicant’s platoon leaders at one time, and from three NCO’s, indicate that the applicant was an unsatisfactory soldier, in both conduct and efficiency, and that he should be eliminated from the Army.

On 10 January 1961 the applicant was arraigned and tried before a summary court martial and found guilty of willfully disobeying a lawful order from an NCO.

On 13 January 1961 the separation authority approved the recommendation to discharge the applicant from the Army and directed that he be issued an Undesirable Discharge Certificate.

The applicant was discharged at Fort Dix, New Jersey on 9 February 1961.  He had 1 year, 4 months, and 28 days of service, and 32 days of lost time.

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.  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 9 February 1961, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 9 February 1964.

The application is dated 29 January 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

__amc___  __esc___  ___cjp__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013832	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990429	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  110.00		
3.  108.00		
4.		
5.		
6.