MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 August 1999    
	DOCKET NUMBER:   AR1998013839

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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.  The applicant states that he was not aware of difficulty he would encounter in civilian life with        his voluntary 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 7 May 1968, he was inducted into the Army of the United States for a period of 2 years.    He completed basic training at Fort Bragg, North Carolina, advanced individual training at     Fort Ord, California, and an 8 month tour in Vietnam.

On 3 October 1968, the applicant was convicted by summary court-marital for being absent without leave (AWOL) from 19 - 22 August 1968.  He was sentenced to confinement at hard labor for 30 days and a forfeiture.

On 10 June 1969, he accepted nonjudicial punishment, under the provisions of Article 15, Uniformed Code of Military Justice for sleeping on post on 1 June 1969.  His punishment      was forfeiture and reduction.

On 24 December 1974, he was convicted by general court-martial for being AWOL from           8 September 1969 to 5 December 1973.  He was sentenced to 5 months confinement at      hard labor and reduction.

The applicant was AWOL from 6 July to 13 November 1974.

The facts and circumstances pertaining to the applicant’s discharge are not in the available records, however on 26 December 1974, he was discharged under the provisions of Army Regulation 635-200, chapter 10, and issued an under conditions other than honorable discharge certificate.  His Report of Separation indicates he had 1 year, 7 months and              7 days of active Federal service and 1,839 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.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall 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 26 December 1974, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 26 December 1977.

The application is dated 10 March 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

___rvo__  ___jma__  ___mw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013839	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110.02		
2.		
3.		
4.		
5.		
6.