MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        19 November 1998      
	DOCKET NUMBER:   AC98-11185

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		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 show he was given an honorable discharge.  The applicant states that he was having family problems and the Army would not let him go home so he kept going AWOL. 

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 November 1970, he enlisted in the Regular Army for a period of 3 years.

On 27 April 1971, he was convicted by a summary court-martial for being absent without leave (AWOL) for the period 18 January to 22 March 1971.  He was sentenced to 30 days confinement at hard labor (suspended for 2 months), and forfeiture.

The applicant’s records also reflect that he was AWOL from 15 June to               29 December 1971.

On 24 January 1972, a medical examination, cleared the applicant for separation.  

The facts and circumstances surrounding the administrative discharge procedures under AR 635-200, chapter 10 are not in the available records, however, on 22 February 1972, he was discharged, for the good of the service, under other than honorable conditions (UOTHC).  His Report of Separation indicates he had 5 months and 29 days of creditable service and 270 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 the charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

On 23 July 1982, the applicant submitted, and later withdrew, an application to the Army Discharge Review Board (ADRB) for an 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.  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 February 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 22 February 1975.

The application is dated 29 September 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

___FNE__  __TAP___  __BJE___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director