MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            03 December 1998                  
	DOCKET NUMBER:   AC98-10235

	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	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		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 undesirable discharge be upgraded to honorable.  He states that he had no problems for the first 10 months after he entered the service.  Then he didn’t get along with his company commander, who had it out for him, but he wouldn’t give in.  That he was given excessive punishments for Article 15 actions.  He submits a copy of his letter to the VA requesting medical benefits, and a copy of his service records which he received from the National Personnel records Center.

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:

He enlisted on 20 August 1962 at the age of 17 and, after training, was assigned to Germany.

During the period June 1963 through October 1964 the applicant was administered nonjudicial punishment eight times under Article 15, UCMJ, for various offenses:  absent from his guard post, drunk and disorderly, missing formation, failure to obey a lawful order, missing bedcheck, leaving his assigned weapon (rifle) unattended, and breaking restriction.

On 5 August 1964 the applicant was tried and found guilty by special court-martial for AWOL, breaking restriction with intent to deceive, and violating a lawful US Army Europe regulation by concealing a hunting knife in his barracks.

A 13 October 1964 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  A report of mental status evaluation determined that he was mentally responsible, able to distinguish right from wrong and adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and he met the medical standards for retention in the Army.

On 24 October 1964 the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-208.  The applicant appeared before a board of officers on 23 November 1964, which supported the commander’s recommendation.  The separation authority, a major general, approved the recommendations and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 14 December 1964 at Fort Hamilton, New York.  He had 2 years, 1 month and 27 days of creditable service and 58 days time lost.
Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate.

On 15 October 1973 the Army Discharge Review Board denied the applicant’s request for upgrade of 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 15 October 1973, the date of the ADRB review. The time for the applicant to file a request for correction of any error or injustice expired on 15 October 1976.

The application is dated 28 May 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

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