MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 August 1999                  
	DOCKET NUMBER:   AR1999019111

	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. Vic Whitney		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:  That his record of assignments be corrected to delete the entry of desertion and to show that he was an assistant supply sergeant not a vehicle driver.  He states that he worked very hard to become the best soldier he could be.  He put pride and honor into everything.  He submits copies of his military records in support of his application.

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 enlisted for duty as a military policeman and entered active duty on 28 February 1968.  While still in training he was convicted by summary court-martial on 30 July 1968 of 90 days AWOL.  The 12 May 1968 entry on the DA Form 20 states “Dropped from the rolls-Desertion.”  Although there is no record of punishment in the available record, he was AWOL again for 109 days, from 5 August to 21 November 1968.  He was then placed in confinement for 105 days, from 5 December 1968 to 19 March 1969.  He was AWOL again for 25 days, from 24 March to 17 April 1969.  On 2 May 1969 he was convicted by special court-martial of the AWOL offense.

The applicant finally completed training as a vehicle driver in June 1969 and was assigned to Vietnam as a data processing equipment operator in August 1969.  A psychiatric examination was requested in connection with proposed separation actions under Army Regulation 635-212 for unsuitability.  The 30 October 1969 evaluation resulted in a diagnosis of schizoid personality, chronic, severe.  The applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his judgment was impaired, insight was limited, and his memory good.  He was mentally responsible, able to distinguish right from wrong, and to adhere to the right.  There was no significant mental illness.  The applicant stated that he feels trapped and he had made two previous suicide attempts.  He was preoccupied with death.  Based on this character and behavior it was recommended that he be expeditiously separated.

Based on information contained in a line of duty (LOD) report he suffered a self-inflicted gunshot wound to his right chest on 11 November 1969.  A suicide note was found among his personal belongings.

The LOD notes that the applicant had been assisting the mess sergeant by supervising the kitchen police detail for over a month while paperwork was being processed for administrative separation for unsuitability.  The unit commander stated that a psychiatric report recommended the applicant be separated for unsuitability.  The final determination was “Not in line of duty-due to own misconduct.”

He was promoted to grade E-4 by the hospital commander effective 26 January 1970.  After the applicant was released from the hospital he was assigned as a vehicle driver to Fort Meade, Maryland.  DA Form 20 entries for 3 April 1970 and 31 March 1971 show his duty as vehicle driver.  A unit order in the record, dated 7 July 1970, shows that he was appointed as an acting sergeant, grade E-5.  The military specialty shown is for vehicle driver.

Effective 29 December 1971 he was separated from active duty and transferred to the USAR in grade E-4.  He had 2 years, 10 months, and 14 days creditable service and 348 days lost time.  NOTE:  The applicant’s authorized awards list the Purple Heart.  General Order number 27 in the available record shows that the award of the Purple Heart was revoked on 13 May 1970. 

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 29 December 1971, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 29 December 1974.

The application is dated 10 August 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	AR1999019111	
SUFFIX		
RECON		
DATE BOARDED	19990805	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	131.09	
3.		
4.		
5.		
6.