MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 June 1999      
	DOCKET NUMBER:   AR1999020852

	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. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		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 bad conduct discharge be upgraded to honorable.  He states, in effect, that he was arrested for assaulting [Pvt. Danolly], another soldier, when in fact it he was merely standing in the doorway when another soldier committed the offense.  He notes the charges against the other soldier were dropped but he “was given six months in [the] stockade.”

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 13 February 1977 and successfully completed basic and advanced individual training.  Following completion of training he was assigned to Fort Hood, Texas.

While at Fort Hood he was punished 5 times under Article 15 of the UCMJ for a variety of offenses, including two periods of AWOL, sleeping on post, failing to report to his place of duty and disobeying an order.  In August 1975 he was convicted by a special court-martial of AWOL, stealing a money order from another soldier and disobeying a lawful order.  His punishment included confinement, forfeiture, reduction to pay grade E-1, and a bad conduct discharge. All but the discharge was approved.

In August 1976 he was convicted by a special court-martial for stealing a $1.00 from a Private Morrissey “by means of force and violence….”  The applicant was sentenced to reduction to E-1, six months confinement at hard labor, reduction to E-1 and a bad conduct discharge.

On 2 August 1977 the applicant was discharged under other than honorable conditions as a result of the court-martial sentence.  At the time of his separation he had completed 3 years, 1 months, and 5 days of active Federal service with 275 days of lost time.

Army Regulation 635-200 states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.

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 2 August 1977, the date the applicant was discharged 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 2 August 1980.

The application is dated 24 February 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

___gdp__  __aao___  ___jpi__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020852	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990630	
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.