MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         4 November 1998      
	DOCKET NUMBER:   AC98-10786

	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. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 discharge under other than honorable conditions be upgraded to honorable or general.

He states that he was assisting the CID “bust” a drug dealer.  He was transferred to a facility where his cover was blown and his life jeopardized.  Because he was required to return to Darmstadt [Germany] to testify, the Colonel and First Sergeant became wary.  He was constantly having to look over his shoulder.  He was warned that the company was a family and someone getting “busted” would not be tolerated.  He went AWOL.  His record will prove that he was transferred from Darmstadt to Augsburg, and shortly thereafter he found it necessary to stay away from a corrupt unit.  The promise from a CID agent that he would be safe was untrue.   

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 22 November 1971 and was assigned to Fort Polk, Louisiana for training.  On 25 January 1972 he received nonjudicial punishment for bringing discredit to the service because he was arrested for breaking and entering a motel in Leesville, Louisiana and stealing a tape deck.

He completed basic training, completed training as a lineman at Fort Gordon, Georgia, and in June of 1972 was assigned to a signal unit in Germany.  In August he was promoted to pay grade E-4.  On 22 February 1973 he received nonjudicial punishment for driving without a valid USAREUR (United States Army, Europe) driver’s license.

On 27 November 1973 as a result of reclassification board proceedings, his MOS of 36C20 (Lineman) was withdrawn and he was awarded an MOS of 71T20 and assigned duties as a maintenance data specialist.  

On 11 January 1974 he received nonjudicial punishment for being drunk and disorderly, and for assaulting an NCO.

In April 1974 he was reassigned from his unit in Darmstadt to a signal company in Augsburg, Germany.  The applicant was AWOL from 28 June 1974 to 
9 October 1974.  On 4 December 1974 he was reduced to pay grade E-1 for misconduct.

On 29 November 1974 the VII Corps Staff Judge Advocate stated that there was no legal objection to approving the applicant’s discharge with award of an undesirable discharge under the provisions of paragraph 10-1, AR 635-200.

A special court-martial order number 100, 9 December 1974, published by Headquarters VII Corps, shows that the applicant appeared before a special court-martial, and was charged with three specifications of AWOL and one specification of failure to obey a lawful order.  Those charges were withdrawn by the convening authority on 2 December 1994.

The applicant returned to the United States and was discharged at Fort Jackson, South Carolina on 9 December 1974 under the provisions of Army Regulation 635-200, chapter 10.  He had 2 years, 9 months, and 14 days of service, and 
94 days of lost time. 

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 December 1974, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 9 December 1977.

The application is dated 8 October 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

__JEV___  ___LLS__  __TNK__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director