MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           22 July 1999       
	DOCKET NUMBER:   AR1998013952

	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. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		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 records be corrected by upgrading his discharge to honorable, and correcting item 30 (Remarks) on his DD Form 214 (Report of Transfer or Discharge) to 650 days of lost time instead of 718 days.  In support of his request the applicant submits a copy of his DD Form 214, a letter dated 26 January 1998, summarizing the nature of his request and a computation of his lost time.

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 21 August 1969, he enlisted in the Regular Army for a period of 3 years.

On 27 October 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 16 September 1969 to 24 October 1969.  His punishment was restriction and forfeiture.

On 11 March 1970, he accepted NJP under the provisions of Article 15, UCMJ for being AWOL from 5-9 March 1970.

The applicant’s DD Form 214 reflects 2 additional period of lost time from
4 May 1970 to 23 February 1972, and 2 March 1972 to 16 March 1972.

The facts and circumstances concerning the applicant’s discharge are not in the available records.  His Report of Separation indicates that he was discharged on 28 March 1972, under the provisions of Army Regulation 635-200, chapter 10, and issued an under other than honorable conditions discharge; it also reflects that the applicant had 7 months and 10 days of creditable service and 718 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, 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 28 March 1972, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 28 March 1975.

The application is dated 3 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

___cmf__  __tnk___  ___rjw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR199801952	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990722	
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.