MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 February 1999
	DOCKET NUMBER:   AC97-11419
				   AR1998002318

	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. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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 records be corrected to upgrade his undesirable discharge to general.  The applicant states that he was court-martialed for being absent without leave (AWOL), and sentenced to one year confinement, forfeiture and reduction; and that after his confinement he was to return to active duty, instead he was discharged; he was also told that he could appeal his discharge and it would be changed. 

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:

On 19 December 1957, he enlisted in the Regular Army for a period of         3 years.

On 25 September 1958, he was convicted by general court-martial for being AWOL from 16 June to 25 July 1958, and for escaping from lawful confinement in the post stockade on 20 August 1958.  His sentence was confinement at hard labor for 9 months, and a forfeiture of $25.00 per month for 9 months.

On 31 October 1958, a board of officers convened under the provisions of Army Regulation (AR) 635-208, requested by the Commandant USDB, Fort Leavenworth, Kansas to determine whether the applicant was eligible for separation or whether he should be returned to duty upon completion of confinement.  The board recommended that he be discharged from the service due to his previous offense and a psychological evaluation which indicated he was not suitable for further military service.  The board action was approved on 29 December 1958.

The applicant was confined at the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas from 25 July 1958 until 23 April 1959, he was returned to duty effective 24 April 1959.

On 10 December 1958, a request for clemency was disapproved.

On 1 May 1959, the applicant was discharged, with an undesirable discharge (UD) in pay grade E-1, under the provisions of AR 635-208.  

On 4 May 1962, the Army Discharge Review Board (ADRB) determined that he was properly and equitably discharged and denied his request for a change in the type and nature of his discharge.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, a UD was normally issued.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when 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 1962, the date ADRB finalized their action.  The time for the applicant to file a request for correction of any error or injustice expired on 4 May 1965.

The application is dated 3 March 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

___jma__  __jlp___  ___sc_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC97-11419/AR1998002318	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990225	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.		
3.		
4.		
5.		
6.