MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 November 1998                  
	DOCKET NUMBER:   AC98-11379

	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. Vic Whitney		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:  That his undesirable discharge be upgraded to honorable.

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 27 December 1968.  While still in training he was convicted by special court-martial of 6 days AWOL and resisting apprehension.  The punishment included confinement for 30 days.  He completed wireman and basic airborne training and was assigned to Fort Bragg in October 1969.

He was AWOL again from 19 November to 11 December 1969 and was convicted by special court-martial of the offense.  The adjudged sentence included 45 days confinement.  On 20 April 1970 the applicant was again AWOL and was dropped from the rolls as a deserter on 19 May 1970.

The applicant was apprehended by civil authorities on a charge of tampering with an automobile and released to military authorities on 26 September 1970.  On 2 October 1970 charges were preferred for the 160 day AWOL offense.

Although the separation proceedings are not in the available record the applicant was discharged under conditions other than honorable on 16 October 1970 under the authority of Army Regulation 635-200, chapter 10.  He had 1 year, 3 months, and 17 days creditable service and over 183 days 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.

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 16 October 1970, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 October 1973.

The application is dated 12 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