MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        17 February 1999   
	DOCKET NUMBER:   AC97-10263
				    AR1999020399

	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	
	Ms. Deborah L. Brantley		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:  In effect, disability separation or retirement with an honorable characterization of service.  He states, in effect, that his undesirable discharge was inequitable.  He notes he was only 17 years old at the time of his enlistment in the Army and in actuality had no legal authority to enter into a contract, and as such any actions taken by the military should have been voided in view of his age.  He states that his extensive drug and alcohol abuse made it impossible to meet the requirements of the military and that the military had an obligation to treat those conditions.  The applicant maintains he was intimated by his superiors, resulting in extreme anxiety and ultimately in his AWOL.  He states that he was sexually assaulted during training but was to ashamed to seek help and just wanted to get out the military as quickly as possible because he was scared, young, an emotionally unable to deal with the military.  He also states that he sustained a knee injury while in the service, which still gives him problems today.  In support of his application he submits numerous self-authored statements and several DD Forms 149.  The statements outline his contention that because of his mental condition his undesirable discharge was in error and unjust.  He also submits several “clinic notes” from the Texas Department of Criminal Justice Institutional Division, completed in 1996 and 1997, detailing his discussions with department psychiatrists regarding his drug and alcohol use and his emotional disorders (anxiety, depression, daydreaming) while incarcerated.  He states that the Board should waive the time limits for filing because he was unaware of those time limits.

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 and entered active duty on 16 October 1974 at the age of 17 with 
11 years of formal education (the applicant indicated in his application, however, that he barely passed the 9th grade) and a GT score of 98.  

The applicant successfully completed basic and advanced individual training and was promoted to pay grade E-2 on 16 February 1975.  He was awarded a military specialty of 11B (infantryman) on 21 February 1975 at Fort Polk, Louisiana.  In March 1975 he was assigned to Fort Benning, Georgia for airborne training but on 7 March 1975 was removed from training based on a “self-imposed withdrawal.”  He remained at Fort Benning in a “casual” status until 
1 April 1975 when he departed for Europe in accordance with his enlistment contract.

Although documents associated with the applicant’s administrative separation are no longer part of his available records, and attempts to locate those document were not successful, the applicant’s separation report (DD Form 214) indicates he was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was discharged under other than honorable conditions on 6 May 1975.  At the time of his separation he had completed 6 months and 21 days of active Federal service.  Neither his DD Form 214, nor his DA Form 2-1 (personnel qualification record) reflect any lost time.

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.  In the absence of evidence to the contrary the Board presumes regularity.

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that an enlisted soldier may not be referred for disability processing when action has been started under any regulatory provision which authorizes a characterization of under other than honorable conditions unless the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditons.  There is no evidence, and the applicant has not provided any, which confirms that any medical conditions contributed to the misconduct which resulted in his voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10.

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 6 May 1975, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 6 May 1978.

The initial application is dated 26 March 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	AC97-10263/AR1999020399	
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         1.108.00		
2. 110.00		
3. 142.00		
4.		
5.		
6.