MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            27 April 1999     
	DOCKET NUMBER:   AR1999020665

	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. John N. Slone		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Curtis L. Greenway		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, that the sentence imposed by his 1970 Special Court-martial be reduced or voided.  He states, in effect, that the court-martial was unjust and that he was discriminated against.  He contends that he was AWOL because he could not get any help from his chain of command, that he was forced to accept the “JAG officer” that was provided for his defense and that his defense attorney insisted his punishment be severe or the “colonel would hang them.”  The applicant states he was essentially told to “ride” his “time out the best [he] could” and not make “any waves.”  In support of his request his spouse submits a letter stating that the Army failed to assist the applicant who was clearly suffering from PTSD following his return from Vietnam.  She notes that when he couldn’t receive help from the Army he went AWOL and sought help from a civilian physician.  She states that had the Army helped her spouse “back in October of 1969 his life could have been different.”

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 entered active duty on 27 June 1967 at the age of 18 with 12 years of formal education.  He successfully completed basic and advanced individual training and in November 1967 was assigned to Vietnam as a truck driver.

In October 1968 the applicant was promoted to pay grade E-5 and in November 1968 he returned to the United States and was assigned to Fort Carson, Colorado.

In May 1969 he was punished under Article 15 of the UCMJ for missing reveille.  His punishment included a $25.00 fine.  The applicant appealed, noting that “the punishment is too great for the crime committed” and that it was his first offense. His appeal was denied.

On 13 October 1969 the applicant departed AWOL and returned to military control on 17 October 1969.  On 7 November 1969 he assaulted another soldier by striking the soldier in the head with his fist.  Following the assault the applicant was placed in confinement pending trial by court-martial.

A neuropsychiatric report, completed on 3 December 1969, noted the applicant “has had considerable marital conflict” during his five months of marriage and that as a result the applicant indicated he “was becoming so nervous that he, 

feeling that he was being ridden so much, finally could not take it any longer and went AWOL….”  The evaluating physician indicated the applicant gave a history of being a “highly nervous individual” and that he had a history of “much physical violence in his youth.”  He noted the applicant “was suspended on several occasions from school for fighting….”

On 20 December 1969 the applicant appeared before a special court-martial.  He pled guilty to the assault charge but not guilty to the AWOL charge.  The court found him guilty of being AWOL during the period 14 October 1969 through 
17 October 1969 but not guilty of assault.  His punishment included reduction to pay grade E-3, restriction to his company for two months and forfeiture of $75.00 for one month.

The Table of Maximum Punishment in the MCM authorizes up to 6 months confinement, forfeiture of 2/3rds pay for 6 months, and reduction to pay grade 
E-1 for AWOL periods of more than 3 but less than 30 days.

The applicant remained on active duty until 26 June 1970 when he was honorably discharged upon the expiration of his enlistment contract.

On 19 July 1974 the applicant returned to active duty after obtaining a wavier for his previous court-martial conviction.  He was eventually promoted to pay grade E-5 in August 1976 and on 20 April 1977 he voluntarily agreed to an honorable discharge under the Army’s Expeditious Discharge Program because of his inability to adapt emotionally to the military.

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 26 June 1970, the date he was initially discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 26 June 1973.

The application is dated 21 March 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

___jns__  ___rvo__  ___clg____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020665	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990427	
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. 110.00		
2. 142.00		
3.		
4.		
5.		
6.