MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            27 April 1999     
	DOCKET NUMBER:   AR1999018102

	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. John N. Slone		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		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:  In effect, that the reason for his discharge be changed.  He states, in effect, that his separation document reflects that he was separated for “unsuitability-personality disorder” although he contends that he was never evaluated by a psychiatrist or other health professional.

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:

He entered active duty on 21 November 1969 and successfully completed basic and advanced individual training.  In November 1970 he was assigned to Vietnam as a clerk typist and in April 1971 was reported as AWOL when he failed to return to his unit in Vietnam following authorized leave.

A 6 May 1971 psychiatric evaluation noted the applicant was being evaluated following a “drug ingestion” and that the applicant had failed to return to his unit in Vietnam at the conclusion of his authorized leave “because of harassment in RVN, his mother’s worry about him & problems dealing” with his girl friend.  Following the evaluation the applicant turned himself over to military officials and returned to Vietnam.

Upon his return to Vietnam his unit commander notified the applicant that he (the unit commander) was initiating action to administratively separate him for unsuitability.  The commander sited the applicant’s “apparent unwillingness and inability to accept the inherent responsibilities of a member of the United States Army” as the basis for the separation action.  The applicant consulted with counsel and acknowledged receipt of the proposed separation.

On 27 May 1971 the applicant was evaluated by the division psychiatrist at the 101st Airborne Division Mental Hygiene Consultation Service.  The evaluating psychiatrist concluded the applicant suffered from a passive-dependent personality, which was manifested by passive obstructionism, dependency, and suicide threats.  He noted the applicant was not motivated for further military service, that retention could endanger the lives of other, and that he had a prior record of auto theft, larceny, and assault.  The evaluating psychiatrist recommended the applicant be administratively separated under the provisions of Army Regulation 635-212.

The recommendation was approved and on 7 June 1971 the applicant was discharged under honorable conditions with 1 year, 6 months, and 16 days of creditable service.  Item 28 (narrative reason for separation) states “unsuitability – personality disorder.”

In 1981 the Army Discharge Review Board upgraded the applicant’s discharge to honorable and in 1986 this Board denied the applicant’s petition to grant him a retirement or separation based on disability.

Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy by a displayed lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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 in 1981 when the ADRB finalized their action.  The time for the applicant to file a request for correction of any error or injustice expired in 1984.

The application is dated 26 May 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

___jns_  ___rvo__  ___clg_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018102	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990472	
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.