MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            8 July 1999                  
	DOCKET NUMBER:   AR1998018096

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Roger W. Able		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 young and forced to join the military by his father; that he has paid for his childish mistakes and would like to have a discharge that would allow him to have an ID card and medical benefits.  In support of his request the applicant submits documents from his official military personnel files (OMPF), and letters from two of his employers.

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 30 December 1966, at the age of 17, he enlisted in the Regular Army for a period of 2 years.  

On 11 July 1967, he accepted nonjudicial punishment under the provisions of Article 15, Uniformed Code of Military Justice, for being AWOL for 3 June 1967 to 11 July 1967.  His sentence was a forfeiture.

On 22 September 1967, he was convicted by a special court-martial for being absent without leave (AWOL) from 27 July 1967 to 8 September 1967.  He was sentenced to 4 months of confinement at hard labor, reduced to the pay grade of E-1, and a forfeiture.

On 21 March 1968, he was convicted by a special court-martial for being AWOL from 3 January 1968 to 22 February 1968.  He was sentenced to confinement at
hard labor for 6 months, and a forfeiture.

On 8 July 1968, he was convicted by a special court-martial for being AWOL from 31 March 1968 to 7 June 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture.

On 29 July 1968, the applicant’s company commander notified him that he was being recommended for separation from the service under the provisions of Army Regulation 635-212, for unfitness.  

On 29 July 1968, after consulting with legal counsel, the applicant authenticated a statement with his initials and signature, acknowledging that he had been advised of the basis for his commanders contemplated action to separate him under the provisions of Army Regulation 635-212 for unfitness,  He waived consideration of his case by a board of officers, declined representation by counsel and elected not to submit statements in his own behalf.
On 9 August 1968, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, and directed the issuance of an undesirable discharge certificate.

On 23 August 1968, the applicant was discharged under the provisions of the above cited regulation.  His Report of Separation indicates he had 7 months and 6 days of creditable service and 384 days of lost time.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel from active duty.  That regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  Members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  When separation for unfitness was warranted an undesirable discharge (UD) was normally considered appropriate.

On 18 December 1980, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

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 23 August 1968, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 December 1983, 3 years after the ADRB denied his request.  

The application is dated 21 July 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

___jh_____  __rvo___  ___rwa__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998017096	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990708	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 110.02		
2.		
3.		
4.		
5.		
6.