MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November 1998                   
	DOCKET NUMBER:   AC98-11808

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. June Hajjar		Member	
	Mr. Thomas D. Howard, Jr.		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 an honorable discharge.  He states that under current standards he would have received counseling with regard to his alcoholism.  When he finally did receive rehabilitation in civilian facilities he was able to maintain sobriety.

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 in the Regular Army on 28 February 1961.  He completed basic training and was awarded military occupational specialty 140.00 (Field Artillery Basic).

On 5 July 1961, the applicant was convicted by a summary court-martial of violating a lawful general regulation by driving without a valid driver’s license.  He was sentenced to forfeit $30 pay for 1 month.

On 11 October 1961, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for violating the existing pass regulation.

On 31 January 1962, the applicant was convicted by a summary court-martial of being absent without authority from 0010 - 0710 28 January 1962.  He was sentenced to forfeit $35 pay for 1 month and to hard labor for 1 month.

On 8 February 1962, the applicant was convicted by a summary court-martial of being absent without authority from 2000 - 2015 on 3 February 1962 and failure to go to his appointed place of duty.  He was sentenced to forfeit $50 pay for      1 month and to confinement at hard labor for 30 days.

On 9 February 1962, the applicant completed a psychiatric examination.  The examination found he was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.  The medical examiner did note that he coped with his everyday frustrations through excessive alcohol intake.

On 15 February 1962, the applicant was convicted by a special court-martial of being disrespectful in language towards his superior commissioned officer by calling him a “short, fat, sawed off runt,” or words to that effect and by disobeying a lawful order to be at ease.  He was sentenced to forfeit $50 pay for 6 months, to be reduced to the lowest grade  and to confinement at hard labor for 6 months.

On 23 February 1962, the applicant’s commander recommended him for elimination under the provisions of Army Regulation 635-208 for unfitness.  The applicant was counseled and advised of the basis for the action.  He declined counsel, waived action by a board of officers, and elected not to submit a statement in his own behalf.

On 13 March 1962, the appropriate authority approved the recommendation and directed he receive a discharge under other than honorable conditions.

On 28 March 1962, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness.  He had completed 11 months and       23 days of creditable active service and had 37 days of lost time.

There is no evidence that the applicant ever 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 28 March 1962, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 28 March 1965.

The application is dated 30 December 1997.  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

JEV    JH       TDH    CONCUR WITH DETERMINATION

                                Loren G. Harrell
					 	Director