MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          17 February 1999                    
	DOCKET NUMBER:   AC98-11475
				   AR1999016420

	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. Charles H. Loundermon		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		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 general discharge be upgraded to honorable.  
He states that he was having family problems as his first wife was being unfaithful to him.  He feels that the discharge was harsh.

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 30 July 1985, completed training and in November was assigned to an armored battalion in Germany.

On 16 January 1987 the applicant received nonjudicial punishment under     Article 15, UCMJ, for wrongfully using marijuana.

On 1 March 1988 he was promoted to pay grade E-4 and on 5 April 1988 the applicant reenlisted in the Army for five years.  On 14 April 1988 he was awarded the Army Achievement Medal and on 27 May 1988, the Expert Infantry Badge.

The applicant completed his tour of duty in Germany and in November 1988 was assigned to an infantry battalion at Fort Campbell, Kentucky.

On 22 December 1988 he received nonjudicial punishment for being AWOL from 4 December until 6 December 1988, and from 10 December until 
15 December 1988.  He was reduced to pay grade E-2, required to forfeit $376.00 per month for two months (suspended until 10 April 1989), required to perform 45 days of extra duty, and restricted to the battalion area for 45 days.

A checklist for pretrial confinement completed by the applicant’s commanding officer indicates that on 7 January 1989 the applicant broke restriction imposed as a result of the nonjudicial punishment he received on 22 December 1988.

On 10 January 1989 the suspension of the forfeiture imposed by the 
22 December 1988 nonjudicial punishment was vacated in that the applicant did not go to his appointed place of duty on 31 December 1988.

On 2 February 1989 the applicant was arraigned, tried, and pled guilty to AWOL from 7 January 1989 to 17 January 1989, before a summary court-martial which convened at Fort Campbell.  He was sentenced to reduction to pay grade E-1, forfeiture of $466.00 per month for one month, and confinement for 21 days.

A 9 February 1989 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the standards for retention in the Army.  He was psychiatrically cleared for any administrative action deemed appropriate.  

A 13 February 1989 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile code of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he had attempted suicide, that his knees hurt at times, and ankles hurt when playing sports, that he might get cramps when sleeping, that he was allergic to some medication, and that it took two hours for him to fall asleep.  He was depressed over being AWOL and he stated that he had family problems. 

On 1 March 1989 the applicant’s commanding officer notified the applicant that he was initiating action under the provisions of Army Regulation 635-200,     chapter 14, to discharge him because of misconduct, commission of a serious offense.  

The applicant acknowledged receipt of this notification, consulted with counsel, and stated that he understood the basis for the contemplated action, its effect, and the rights available to him.  He declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged under other than honorable conditions.

On 7 March 1989 the separation authority approved the recommendation that the applicant be discharged and directed that he be issued a General Discharge Certificate.  The applicant was discharged at Fort Campbell on 13 March 1989.  He had 3 years, 6 months, and 27 days of service, and 17 days of lost time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.
A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct.

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.  He was informed by an official of this agency on 13 October 1998 of his right to appeal to the Army Discharge Review Board, should he desire to do so.  He has not yet done so.   

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 13 March 1989, the date of this discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 March 1992.

The application is dated 7 November 1997 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

__chl___  ___fne__  ___js___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-11475/AR1999016420	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990217	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2. 110.00		
3.		
4.		
5.		
6.