MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            29 July 1999                 
	DOCKET NUMBER:   AR199906549

	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	
	Ms. Shirley L. Powell		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:  That his undesirable discharge be upgraded to general.

The applicant states, in effect, that he was misled, and that his last year in the Army was supposed to have been dropped, because the Army did not honor the reenlistment agreement, in that he was supposed to have been assigned to Fort Knox, Kentucky, instead of Fort Carson, Colorado.  He was told that if he did not get Fort Knox as a duty station he would not have to serve a fourth year in the Army.  He stated that he was angry when he discovered that he had to serve a fourth year, and that since he had no written agreement, he had no choice.  He let his anger get the better of him, and did not realize at that time how his actions would affect his future.  He would be more than willing to return to the service to fulfill the terms of his contract. 

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 15 November 1968 for Army career group 63, mechanical maintenance.  He completed training and in June 1969 was assigned to an infantry battalion in Vietnam as a general vehicle repairman.  He was promoted to pay grade E-4 on 7 November 1969.

On 25 November 1969 the applicant, assigned to Headquarters and Headquarters Company, 4th Battalion, 31st Infantry, 196th Infantry Brigade of the Americal Division in Vietnam, reenlisted in the Army for three years.  His           DD Form 4 (Enlistment Contract), which he signed shows that he reenlisted for his present duty assignment (Item 48, DD Form 4).  In one of the statements contained in a DA Form 3286 (Statements for Enlistment), which he signed, he acknowledged that “all promises made to me are contained in item 3 (Rate/Grade), 37 (Rate/Grade Appointed), 48 (Untitled Item) of the DD Form 4, my enlistment contract.”  A DA Form 3286-22 (Statements for Enlistment,        Part VI – Present Duty Assignment Option), which the applicant signed, shows that his enlistment for that option guarantees only that he would be initially assigned to his present duty assignment.  Orders published on                          26 November 1969 effecting his reenlistment, show that he enlisted for his present duty assignment.

On 31 January 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 31 December 1969 to 20 January 1970.

The applicant was awarded the Army Commendation Medal for his meritorious service in Vietnam, and in July 1970 returned to the United States at Fort Carson, Colorado, where he was assigned to an engineer battalion as a tracked vehicle mechanic.  

The applicant’s DA Form 20 (Enlisted Qualification Record) indicates that the applicant was AWOL from 13 April 1971 to 7 May 1971, and again from              4 November 1971 to 2 February 1972.

In a 17 February 1972 statement, the applicant’s battalion commander stated that the applicant fully understood and was well adjusted to the seriousness of an undesirable discharge and that the applicant wanted no part of the Army.  He had a very poor attitude toward the Army and especially toward continued service.  Rehabilitation was impossible.

An 18 February 1972 report of medical examination indicates that the applicant was medically qualified for separation.  The applicant stated on that report that his present state of health was excellent.

The applicant was discharged at Fort Carson on 3 March 1972 under conditions other than honorable, for the good of the service.  He had a total of 2 years,       11 months, and 11 days of service, and 134 days of lost time.

On 26 February 1998 the applicant was informed that his application for the review of his discharge by the Army Discharge Review Board could not be processed because the law prohibited processing of applications beyond           15 years from date of discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
 
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.

I
DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 March 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 3 March 1975.

The application is dated 13 April 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

___chl__  ____slp_  ___clg____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016549	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.