MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            5 August 1999                  
	DOCKET NUMBER:   AR1999016637

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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. He states, in a self-authored statement, that his commander originally offered him a transfer but he felt he was being treated unfairly so elected to be discharged rather than transferred.  He notes that he was promised a review and upgrade of his discharge but never pursued it.  He states that he would now “very much like to have the record reflect the positive man [he has] become instead of the stubborn young boy [he] was.”  He submits no evidence 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 reconstructed military records show:

He entered active duty on 12 June 1957 at the age of 17 and was allowed to remain on active duty in spite of the fact that he had concealed juvenile offenses at the time of his enlistment processing.

In July 1958 he was convicted by two summary courts-martial, one for breaking restriction and one for assault, theft, and AWOL.  In August 1958 the applicant’s unit commander initiated action to administratively separate the applicant from the military under the provisions of Army Regulation 635-208.  The commander cited the applicant’s inability to satisfactorily adjust to a military environment, constant trouble and two records of trial as the basis for his recommendation.

A physical examination conducted in October 1958 found the applicant medically qualified for separation and noted that he was able to distinguish right from wrong and to adhere to the right.

The applicant appeared, with counsel, before a board of officers on 8 September 1958.  The board determined the applicant should be discharged and recommended issuance of an undesirable discharge.  The recommendation of the board was approved and on 15 October 1958 the applicant was discharged under other than honorable conditions.

Army Regulation 635-208, in effect at the time provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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 15 October 1958, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 15 October 1961.

The application is dated 20 November 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

___mdm_  ___aao__  __ewl___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016637	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
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. 110.00		
2.  142.00		
3.		
4.		
5.		
6.