MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1998                   
	DOCKET NUMBER:   AC98-12656

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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 his psychiatric problems impaired his ability to serve and his mental illness was not properly diagnosed.  He submits letters and records from community psychiatric counseling organizations in support of his application.

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 and entered active duty on 31 December 1969.  While still in training he was punished under Article 15, UCMJ for disobeying orders, violating regulations, disrespect, and failure to repair.  On 30 June 1970 he was convicted by special court-martial of 37 days AWOL and contempt toward an NCO.

On 9 October 1970 a psychiatric evaluation was conducted for the applicant.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  There was no evidence of a medically disqualifying emotional illness and he was cleared for administrative separation.  A Medical Corps major signed the evaluation.

At a 16 October 1970 physical examination for the purpose of separation the applicant was found to be in good health with no disqualifying defects.  The applicant wrote that his health was “Excellent”.

On 19 October 1970 the unit commander recommended the applicant be discharge for unfitness.  In his recommendation the commander noted the applicant’s numerous acts of indiscipline and repeated attempts at counseling.  He had a poor attitude and low job performance.  The applicant had told the command that he cannot and will not adjust to Army life.  A waiver of the rehabilitative transfer requirement was requested.

On 22 October 1970 the applicant acknowledged the recommendation for his separation for unfitness.  After consulting with counsel he waved his rights to a hearing before a board of officers, to submit a statement in his behalf, and representation by counsel.

On 20 November 1970 the separation authority, a major general, approved the request and directed separation with an undesirable discharge.  Effective 25 November 1970 the applicant was discharged under authority of Army Regulation 635-212.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

In April 1977 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 June 1977 his discharge was upgraded under the auspices of the Special Discharge Review Program (SDRP). 

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

On 8 June 1978 the ADRB voted unanimously not to affirm the general discharge previously granted the applicant under the SDRP.

Public Law 95-126, enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under the DOD Special Discharge Review Program.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

Documents provided by the applicant concern a diagnosis and treatment for Paranoid Schizophrenic symptoms.  The documents from a doctor and a social worker discuss the applicant’s behavior problems due to his mental illness and go on to state their belief that the applicant may have been experiencing effects of this illness during his service in the Army.  The illness may have contributed to the behavior that led to his undesirable discharge.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

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 8 June 1978, the date his previous discharge upgrade was not affirmed.  The time for the applicant to file a request for correction of any error or injustice expired on 8 June 1981.

The application is dated 26 February 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

JH______  FNE_____  TBR_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12656	
SUFFIX		
RECON		
DATE BOARDED	19981209	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701125	
DISCHARGE AUTHORITY	AR 635-212, paragraph 6a (1)	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	142.01	
3.		
4.		
5.		
6.