MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 February 1999                  
	DOCKET NUMBER:   AR1999019178

	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. Charles H. Loundermon		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		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 undesirable discharge be upgraded to honorable.

He states that he was suffering from post traumatic stress disorder (PTSD), schizophrenia, and substance abuse.  He used substances to cope, and was not capable of fully understanding the proceedings of his court-martial.   

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 29 September 1969 and was assigned to Fort Dix, New Jersey for training.  He was AWOL on three different occasions for a total of 25 days.  He completed training, however, and in July 1970 was assigned to an infantry battalion in Vietnam, where he was awarded the Combat Infantry Badge, the Army Commendation Medal, and the Air Medal.  He was promoted to pay grade E-4.  He returned to the United States and in August 1971 and was assigned to an infantry battalion at Fort Benning, Georgia.  

On 29 February 1972 the applicant reenlisted in the Army for three years and in September was assigned to an infantry battalion in Germany.

On 13 December 1972 he received nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful order.  On 24 January 1973 he received nonjudicial punishment for being drunk and disorderly, violating a lawful general regulation, and willfully and wrongfully damaging a toilet.  On 30 August 1973 he received nonjudicial punishment for appearing at guard mount unshaven.  On    24 May 1974 he received nonjudicial punishment for disrespect to an NCO.  On  8 July 1974 he received nonjudicial punishment for disobeying a lawful order. 
 
Counseling statements from February 1993 to July 1994 indicate that the applicant had a negative attitude toward the Army, hated the Army and everyone in it, and did not care about his appearance.  Those statements also indicate that he was insubordinate and disrespectful to officers and NCOs.

On 3 July 1974 the applicant’s commanding officer informed the applicant that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  

The applicant consulted with counsel and stated that he understood the basis for the contemplated action.  He waived consideration of his case by a board of officers, and waived a psychiatric examination in connection with the separation action.  He declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive. 

On 25 July 1974 the applicant’s commanding officer recommended to the separation authority that the applicant be eliminated for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

On 30 August 1974 the separation authority approved the recommendation and directed that the applicant receive an Undesirable Discharge Certificate.   He was discharged at Fort Jackson, South Carolina on 10 September 1974.  He had        4 years, 10 months, and 27 days of service.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 10 September 1974, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 September 1977.

The application is dated 25 November 1997 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

___chl____  ____fne_  ___js___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.		
2.		
3.		
4.		
5.		
6.