MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March 1999       
	DOCKET NUMBER:   AR1999018405

	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. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 bad conduct discharge be upgraded to honorable.  He states that he was away from his wife and children for the first time and was in a country of which he knew nothing, and was not used to all day bombing, and watching his buddies dying.    

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 7 August 1969, completed training as a cook at Fort Knox, Kentucky, and airborne training at Fort Benning, Georgia.  In August 1970 he was assigned to an airborne infantry battalion in Vietnam.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 3-6 January 1971, from 1-5 February 1971, and from                        3-6 March 1971.

On 24 March 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL, absent from work formation, and disobeying a lawful order.

On 2 August 1971 the applicant was arraigned and tried by a general court-martial which convened at Nha Trang, Republic of Vietnam.  He pled guilty to being in an off-limits area, possession of heroin, and possession of marijuana.  He was sentenced to a dishonorable discharge, confinement at hard labor for 18 months, and forfeiture of $50.00 per month for 18 months.  The court-martial order indicated that one previous conviction had been considered.

On 25 January 1972 the applicant’s sentence was modified to a bad conduct discharge, confinement at hard labor for 9 months, and forfeiture of $50.00 per month for nine months, by the Army Court of Military Review.  The applicant was discharged under conditions other than honorable on 22 February 1972.  He had 1 year, 11 months, and 17 days of service, and 213 days of lost time. 

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 22 February 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 February 1975.

The application is dated 20 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

___cwb__  __eb____  __rjw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018405	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990304	
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.