MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           02 December 1998                   
	DOCKET NUMBER:   AC98-11806

	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 general discharge be upgraded to honorable. He states that he received an Article 15 in March 1980 for not obeying an order from his squad leader to clean the latrine.  That at the time he was wearing a cast on his left foot due to an injury and was advised by the medics to stay away from water.  That he wasn’t issued a “restriction” permit from the medics which he was supposed to receive.

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 entered active duty on 7 July 1978 and, after training as a military policeman, was assigned to Fort Lee, Virginia.

During the period 21 November 1978 to 28 March 1979 the applicant received three formal counseling statements concerning accidental discharge of his firearm, failure to report to duty, and failure to respond to counseling by his superiors.

On 30 March 1979 the applicant’s commander imposed a bar to reenlistment on him for lack of self discipline and motivation toward meeting his responsibilities as a soldier.

In December 1979 the applicant was reassigned to Germany.  On 25 March 1980 he was administered nonjudicial punishment under Article 15, UCMJ, for failure to report to his appointed place of duty and failure to obey a lawful order.

On 8 April 1980 the applicant’s commander recommended he be reclassified out of the military policeman specialty due to loss of qualification.

On 19 August 1980 the applicant’s commander recommended he be separated for apathy under the expeditious discharge program.  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 general discharge under honorable conditions.  He declined to submit a statement in his own behalf.  On 31 August 1980 the separation authority approved the recommendation and directed the applicant be separated under honorable conditions.

The applicant was separated on 18 September 1980 at Fort Dix, New Jersey.  He had 2 years, 2 months and 12 days of creditable active service.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-31, as then in effect, established policy and prescribed procedures for separating members under the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards, could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.

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 18 September 1980, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 18 September 1983.

The application is dated 26 November 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC9811806	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1998/12/02	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1980/09/18	
DISCHARGE AUTHORITY	AR 635-200 CH 5	
DISCHARGE REASON	A24.00	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.