MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         6 January 1999                     
	DOCKET NUMBER:   AR1998013844

	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 discharge under other than honorable conditions be upgraded to honorable.  He states that he was given a Chapter 10 after he used a friend’s car to look for his girlfriend who had been kidnapped.  He notes that he “didn’t bring it back in time” and “became AWOL trying to find the one [he] was to marry.”

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 17 June 1980 and successfully completed basic and advanced individual training prior to being assigned to Fort Carson, Colorado, in November 1980, as a cook.  

On 1 December 1980 the applicant departed AWOL and on 1 January 1981 was dropped from the rolls of the Army.  He returned to military control on 4 March 1981.

When charges for the AWOL period and stealing a car 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.  In a statement submitted on his own behalf he indicated that he had joined the Army to learn a skill and because of pressure from his parents.  

A mental health evaluation, conducted on 10 March 1981, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal.  It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The separation authority approved the request and directed that an undesirable discharge be issued.  On 4 May 1981 the applicant was separated under 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 4 May 1981, 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 4 May 1984.

The application is dated 8 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