MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999                   
	DOCKET NUMBER:   AR1999015239

	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:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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:  In effect, that his undesirable discharge be upgraded to under honorable conditions.  He submits no documentation in support of his request.

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 29 January 1970.  On his enlistment physical and other enlistment documents he provided his date of birth as 20 October 1950.  There is no evidence of record to show that he ever completed training,

The applicant was AWOL from 18 April to 19 June 1970 and again from 7 to 25 July 1970.  On 3 September 1970 he was informed that he was to be recommended for separation under other than honorable conditions for fraudulent entry by giving a false date of birth for enlistment.  After consulting with counsel the applicant waived his rights to consideration of his case by a board of officers, representation by counsel, and to submit statements in his behalf.

In the commands recommendation for separation of the applicant they noted that an official birth certificate from state records showed his date of birth as 20 October 1952 and cited his 51 days AWOL as grounds for not recommending retention.  The separation authority approved the recommendation and directed discharge under other than honorable conditions.

The applicant was discharged on 30 October 1970 under authority of Army Regulation 635-206.  He had 7 months and 11 days creditable service and 51 days lost time.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who had concealed a fact that existed prior to entry which would have made the individual ineligible for entry he will be considered for discharge.  When separation for fraudulent entry 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 30 October 1970, the date of his separation.  The time for the applicant to file a request for correction of any error or injustice expired on 30 October 1973

The application is postmarked 1 May 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

___LLS__  __RWG___  __CLG___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015239	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19701030	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	142.01	
3.		
4.		
5.		
6.