MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 August 1999     
	DOCKET NUMBER:   AR1999019325

	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. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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 under conditions other than honorable be upgraded to general or honorable.

He states that when he was young he could be erratic, irresponsible, and just plain ignorant, not thinking about the consequences of his actions.  Now, at age 50, he regrets his actions, including the assault for which he was jailed.  He did serve a year in Vietnam in combat and had a decent military record prior to that time.  Given his age and his wartime experience, to be judged on one isolated incident is unjust and undeserved.  

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 was inducted into the Army on 22 June 1967, completed training as an artillery man, and in October 1967 was enroute to Vietnam.  On               16 November 1967 the applicant received nonjudicial punishment under       Article 15, UCMJ, for missing a flight through his own neglect.

The applicant arrived in Vietnam in November 1967 and was assigned to an artillery battalion of the 9th Infantry Division.  On 14 December 1967 he received nonjudicial punishment for willfully disobeying a lawful order.  On 12 April 1968 he received nonjudicial punishment for leaving his battery area.

On 1 August 1968 the applicant was arraigned, tried before a special court-martial, and pled guilty to willfully disobeying a lawful order, and for failing to go to his appointed place of duty.

On 10 November 1968 the applicant’s commanding officer recommended that the applicant be barred from reenlisting because he was a substandard soldier.  He stated that the applicant had a record of habitual misconduct and that he and other officers, and NCO’s, have counseled the applicant on numerous occasions, to no avail.  The applicant declined to make a statement regarding this recommendation.

A 22 December 1968 report for suspension of favorable personnel actions (“flagging action”) indicates that the applicant was discharged because of elimination by board action.

The applicant returned to the United States at the Oakland Army Base transfer station on 25 December 1968, and was given a special leave for the Christmas holiday.  He was assigned to the transfer point at Fort Hayes, Ohio for separation with a reporting date of 3 January 1969.

An 18 February 1969 order published at Fort Knox, Kentucky, shows that the applicant, attached to the separation transfer point at Fort Knox, was reduced to pay grade E-1 effective 2 December 1968 for misconduct.  

The applicant was discharged at Fort Knox on 9 January 1969 under the provisions of Army Regulation 635-200, under conditions other than honorable.  
The separation program number (SPN) shown on his DD Form 214 is 246.

On 10 June 1969 the applicant signed an authorization to allow the National Personnel Records Center to send a copy of his military records to the Lebanon Correctional Institution in Lebanon, Ohio. 

In response to a 19 August 1969 request from the VA for information concerning the applicant’s discharge, a note on that request indicates that the applicant was discharged for the good of the service.

In a 14 July 1998 letter to this agency at St. Louis the applicant’s attorney implied that the applicant’s discharge was based on acts while not on duty, that the applicant had answered his call to duty, served in an artillery unit in Vietnam and suffered a hearing loss.  He stated that if the applicant’s discharge was based on a felonious charge generated in London, Ohio, it was a disgrace, in that the applicant, who was young at that time of the incident of throwing rocks, reacted to a racist remark by older white men.

Army Regulation 635-5, then in effect, provides for special program numbers and authority governing separations, to be entered on the DD Form 214.  Appendix I of that regulation shows that a soldier discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10, will have SPN 246 entered on his DD Form 214.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is 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 9 January 1969, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 9 January 1972.

The application is dated 27 April 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

___fkm_  __inw_____  __gdp___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019325	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
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. 142.00		
2. 110.00		
3.		
4.		
5.		
6.