MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 February 1999  
	DOCKET NUMBER:   AR1999019462

	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 general discharge be upgraded to honorable. 

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 25 January 1978.  He completed training and in May was assigned to an air defense artillery battery in Germany.  

On 1 August 1979 the applicant was arraigned, tried, and found guilty by a special court-martial which convened at Schweinfurt, Germany, of disrespect to a commissioned officer, and of two counts of disobedience of a lawful order.

The applicant returned to the United States and was released from active duty and transferred to a Reserve unit in Brooklyn, New York, on 21 March 1980, under the provisions of Army Regulation 635-200, paragraph 5-31h(1), under the expeditious discharge program (EDP) for failure to maintain acceptable standards for retention.  He received a discharge under honorable conditions.  He had 2 years, 1 months, and 27 days of service.

On 22 December 1983 the applicant was discharged from the Ready Reserve with a General discharge.

On 28 July 1986, the Army Discharge Review Board in an unanimous decision, denied the applicant’s request to upgrade his discharge.  That board noted that whereas the applicant’s discharge packet was missing, in view of the discharge order reflected in his file, the board made a presumption of regularity and noted no impropriety in the discharge process.  

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

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 on 28 July 1986, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on         28 July 1989.

The application is dated 28 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

__chl___  __fne______  _js_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019462	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990217	
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.