MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            16 December 1998                  
	DOCKET NUMBER:   AC98-12144

	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. Ernest M. Willcher		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Carol Jo Suiter		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 after completing basic training he was charged with a petty larceny felony back home, which occurred prior to his induction, and was incarcerated for 6 months in a civilian correctional institution.  That when released from jail, the military police came and took him back to Fort Benning, Georgia, to complete advanced training.

That while assigned to Germany he did his job according to the rules and somehow, after 2 years, he was discharged because of the offense he committed when he first entered active duty.  He feels that this was an injustice because he paid for that mistake to society; that he restored his commitment to the service and did so with honor and distinction.

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 was inducted on 24 January 1969 and was assigned to Fort Benning, Georgia for basic combat training.  In March 1969 he was reassigned to Fort Polk, Louisiana, for advanced infantry training (AIT).

The applicant was assigned overseas to Germany in April 1970.  His military records do not account for the time lapse between his assignment to Fort Polk for AIT and his subsequent reassignment to Germany.

The applicant was separated with an honorable discharge on 20 April 1970 for the purpose of enlisting in the Regular Army.

While serving in Germany, the applicant was administered nonjudicial punishment six times under Article 15, UCMJ:  on 5 December 1970 for failure to obey a lawful order; on 7 January 1971 for owning an unregistered vehicle and being drunk and disorderly; on 21 April 1971 for fighting in public, breaking restriction, wrongfully communicating a threat, and speeding; on 25 June 1971 for failure to report to his appointed place of duty; on 9 August 1971 for two specifications of AWOL; and on 8 October 1971 for AWOL and failure to obey a lawful order.

On 16 November 1971 the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-212.  The applicant appeared before a board of officers on 9 December 1971, 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 26 January 1972 at Fort Jackson, South Carolina, with 2 years and 4 months of creditable service.

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.

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 26 January 1972, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 26 January 1975.

The application is dated 14 August 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.