MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            02 December 1998                  
	DOCKET NUMBER:   AC98-11742

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. John H. Kern		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 general under honorable conditions.  He states that the Army waited until he served almost 3 years and at the last minute gave him a bad discharge, only because his commanding officer hated blacks.

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 31 October 1967 and, after training, was assigned to Korea.  Upon completion of his overseas tour he was reassigned to Dugway Proving Grounds, Utah, with subsequent assignments to Oakdale, Pennsylvania, and Fort Eustis, Virginia.

On 25 November 1968, while serving in Korea, the applicant was administered nonjudicial punishment (NJP) under Article 15, UCMJ, for willfully destroying government property.

While stationed in Oakdale, Pennsylvania, he was administered Article 15 punishment twice:  on 1 August 1969 for failure to report to his appointed place of duty and missing formation, and on 23 October 1969 for wrongful appropriation of a government vehicle.

On 26 January 1970 the applicant was tried and found guilty by special court-martial for AWOL from 22 December 1969 to 7 January 1970.  He was sentenced to confinement at hard labor for 1 month.  After serving his confinement, he was reassigned to Fort Eustis, Virginia.

While at Fort Eustis, the applicant was administered Article 15 punishment twice: on 27 March 1970 for failure to report to his appointed place of duty, and on 
28 July 1970 for three specifications of failing to report to his place of duty.

On 5 August 1970 the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-212.  The applicant consulted with counsel and waived consideration by a board of officers.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

On 10 September 1970 the separation authority approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.  He was discharged on 11 September 1970 with 2 years, 8 months and 29 days of creditable service and 42 days of time lost.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

On 23 March 1984 the Army Discharge Review Board, in a unanimous decision, 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 23 March 1984, the date of the ADRB review.  The time for the applicant to file a request for correction of any error or injustice expired on 23 March 1987.

The application is dated 7 January 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.