MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:   4 March 1999
	DOCKET NUMBER:   AR1998000630

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		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.  He states that his ability to serve was impaired by nervous problems, and his youth and immaturity.

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 on 7 March 1956 at the age of 18 years.  After completing basic and advanced training, he was assigned to Fort Dix, New Jersey.

On 13 August 1956 the applicant was tried by summary court-martial and found guilty of AWOL from 2 August to 7 August 1956.

During the period January 1957 to August 1957 the applicant was administered nonjudicial punishment seven times under Article 15, UCMJ:  on 13 January 1957 for a uniform violation; on 7 February 1957 for failure to report to his appointed place of duty; on 16 April 1957 for falsifying information on his ID card application; on 7 May 1957 for 4 days AWOL; on 6 June 1957 for failure to report to his appointed place of duty; on 2 August 1957 for 1 day AWOL; and on 7 August 1957 for two specifications of failure to report to his appointed place of duty.

A 6 August 1957 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 his health was “good.”  A report of mental status evaluation determined that he was mentally responsible, able to distinguish right from wrong and adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and he met the medical standards for retention in the Army.

On 16 August 1957 the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-208.  The applicant appeared before a board of officers on 22 August 1957, which supported the commander’s recommendation.  The separation authority approved the recommendations and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 9 September 1957.  He had 1 year, 5 months and 23 days of creditable active service and 10 days of time lost.

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.  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.

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 September 1957, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 9 September 1960.

The application is dated 2 August 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998000630	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19570909	
DISCHARGE AUTHORITY	AR635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.