MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 July 1999     
	DOCKET NUMBER:   AR1999015807

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 discharge under other than honorable conditions be upgraded to honorable.

The applicant states that he was a misguided youth involved with drugs and alcohol.  He has since got his life together and is drug and alcohol free and should have his discharge upgraded.  

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:

The applicant enlisted in the Army for three years on 29 July 1974, completed training and in December 1974 was assigned to an armor battalion at Fort Riley, Kansas. 

On 22 May 1975 the applicant received nonjudicial punishment under Article 15, UCMJ, for leaving his place of duty, on three separate occasions and for disobeying a lawful order.  On 10 June 1975 he received nonjudicial punishment for disobeying a lawful order.  On 19 October 1975 he received nonjudicial punishment for AWOL from 18 June 1975 to 3 August 1975.

A 20 August 1975 personnel action form shows that the applicant was in civilian confinement at the Riley County jail in Manhattan, Kansas.  He was released from that jail on 4 October 1975 having pled guilty to charges and sentenced to two years probation.

A journal entry from the district court of Riley County, Kansas of                           8 September 1975 indicates that the applicant pled guilty to the sale of an amphetamine and that he was sentenced to confinement for a period of not less than one year nor more than ten years, and that the court suspended the execution of his sentence and placed him on probation for two years.

The applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-206, section VI, on 20 November 1975.  He had 1 year and 20 days of service and 92 days of lost time.  

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which
the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.
The maximum authorized punishment under the UCMJ for wrongful distribution of an amphetamine is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

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 20 November 1975, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 November 1978.

The application is dated 23 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

___fne__  ___lem__  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015807	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  142.00		
2. 110.00		
3.		
4.		
5.		
6.