MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 August 1999    
	DOCKET NUMBER:   AR1999021086

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 other than honorable conditions be upgraded to general.  

The applicant states that he was charged with burglary in Georgia in October 1966 and sentenced to five years in prison.  He never received a discharge at that time.  He just found out that he had an undesirable discharge.  He was unjustly convicted of that 1966 felony. 

The applicant submits a recommendation from a Kansas state representative who attests to his good character.  

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 16 November 1965.  He completed training and in April 1966 was assigned to a signal company at Fort Ord.

The applicant was AWOL from 16 May through 24 May 1966, and again on             16 June 1966.  On 30 June 1966 he was arraigned, tried, and pled guilty to the AWOL charges before a summary court-martial.  The applicant was in confinement from 17 June 1966 to 29 June 1966.  He was AWOL from 4 July to 10 July 1966.  On 27 July 1966 the applicant was arraigned, tried, and pled guilty to the charge of AWOL and sentenced to one month confinement at the post stockade.

The applicant was AWOL from 15 September 1966 until 26 October 1966 when he was apprehended by civil authorities in Tifton, Georgia.  He appeared in court on       3 November 1966 on a charge of simple larceny.  All charges were dropped and the applicant was released to a special processing detachment for further processing.

A Report of return of absentee dated 27 June 1967 shows that the applicant was presently serving at Lee County Prison in Leesburg, Georgia.  Another report, dated 10 August 1967 shows that the applicant was sentenced to 5 years by a civil court on 6 January 1967.  The applicant’s enlisted qualification record shows that he was confined at Lee Prison on or about 5 January 1967 on charges of burglary and receiving stolen goods.

The applicant was discharged on 6 October 1967 under the provisions of Army Regulation 635-206, because of misconduct, conviction by a civil court.  He had         8 months and 25 days of service and 416 days of lost time.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was 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 6 October 1967, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on       6 October 1970.

The application is dated 14 October 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

__rvo___  ___jma__  __mw____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021086	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.