MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 March 1999    
	DOCKET NUMBER:    AC97-10228
				    AR1998002410

	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. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve 		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 by upgrading his discharge to  honorable.  He states that there was a parallel between his medical and military records showing that he had been very ill while trying to perform as a career soldier; that he had two prior honorable discharges prior to the one in question; and that he was coerced and threatened into signing and accepting a chapter 13 discharge.

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 18 October 1974, he reenlisted in the Regular Army for a period of 3 years.

On 6 January 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for making a false sworn statement to a CID investigator concerning the circumstances of a theft of his personal property.  His punishment included forfeiture, restriction, and reduction to the pay grade of E-3 (suspended for 60 days).

On 30 July 1975, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failure to go to his appointed place of duty on 19 July 1975.  His punishment included forfeiture, extra duty, and reduction to pay grade E-3 (suspended for 60 days).

On 3 November 1975, the applicant’s commander initiated a bar to reenlistment against the applicant, stating that he was immature and irresponsible; that he was indebted to numerous companies, had been counseled repeatedly on these matters and had made no effort to settle his financial obligations; and that his duty performance and appearance were below standard.  

The applicant’s bar to reenlistment was approved on 11 November 1975.

On 25 March 1976, the applicant’s unit commander recommended he be separated under the provisions of Army Regulation 635-200, chapter 13-5b(3), for unsuitability.  He states that all attempts to make the applicant a useful soldier had failed; that he had been counseled on numerous occasions, and had been given every opportunity to improve his conduct and duty performance with no avail; and that all attempts at rehabilitation were met with negative results.

On 25 March 1976, having been advised by legal counsel, the applicant authenticated a statement with his initials and signature in which he indicated he understood the ramifications of receiving a less than fully honorable discharge and declined the opportunity to submit statements in his own behalf.

On 29 March 1976, a physical examination, and mental status evaluation cleared the applicant for separation.  

On 14 April 1976, the appropriate separation authority approved the applicant’s discharge and directed the issuance of a general discharge certificate.

On 22 April 1976, the applicant was discharged under the above cited regulation.  His Report of Separation indicates he had 8 years, 3 months, and    5 days of total service.

On 18 August 1982, the Board denied the applicant’s request for a disability discharge.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation established policy and prescribed the procedures for separating individuals for unfitness or unsuitability.  Paragraph 13-5b(3), provided for an unsuitability discharge due to apathy, which included those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued, as determined by the separation authority based upon the individual’s entire record.

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 22 April 1976, the date the applicant was separated from the military.  The time for the applicant to file a request for correction of any error or injustice expired on 22 April 1979.

The application is dated 3 July 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

___tsk__  ____owt_  ___jps__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC97-10228/AR1998012937	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990317	
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.