MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 September 1999                             
	DOCKET NUMBER:   AR1999017701

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Van B. Cunningham		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 discharge undesirable discharge (UD) be upgraded to an honorable or a medical discharge.  He further states in effect, that the Army did not consider his state of health at the time of separation and that he was hospitalized in Texas for a psychiatric disorder.  

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 14 August 1950, the applicant was inducted into the Army for 2 years.  He completed the required training and was awarded military occupational specialty 3603 (Cannoneer).  The highest grade achieved was pay grade E-3.  

The applicant’s military record indicates that he was convicted by three summary court-martial for concealment of a weapon (bayonet), for being absent without leave (AWOL) from 2 to 30 July 1951 and for a breach of restriction.  His sentence included confinement at hard labor, forfeitures, restrictions and a reduction to pay grade E-1.  

The commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 615-368, for unfitness, and that he be required to appear before a board of officers for the purpose of determining whether the applicant should be discharged before the expiration of his term of service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  

The applicant appeared before a board of officers.  The board of officers found the applicant undesirable for furthers retention and recommended that he be discharged because of unfitness with a UD. 

On 20 December 1951, the applicant was found mentally and physically fit for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

The appropriate authority approved the recommendation and directed the issuance of a UD.  On 21 December 1951, the applicant was discharged in pay grade E-1, under the provisions of Army Regulations 615-368, for unfitness with a UD.  He had completed 1 year, 4 months and 4 days of creditable active service.  

Army Regulation 615-368, in effect at the time set forth the policy and procedures for separation of enlisted personnel.  Unfitness included, in pertinent part, habits and traits of character manifested by antisocial or amoral trends.  When discharged because of unfitness, a UD was issued.  (Board proceedings are required).

On 12 August 1966, the Army Discharge Review Board denied the applicant’s request for an upgrade of his 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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 12 August 1966, the date the ADRB denied the applicant’s request for an upgrade of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 12 August 1969.

The application is dated 7 July 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

__mmd___  __svw___  __vbc___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999017701	
SUFFIX		
RECON		
DATE BOARDED	19990916	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19511221	
DISCHARGE AUTHORITY	AR 615-368 . . . . .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.500	
2.		
3.		
4.		
5.		
6.