MEMORANDUM OF CONSIDERATION

	IN THE CASE OF 

	BOARD DATE:            9 June 1999    
	DOCKET NUMBER:   AR199902475

	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:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		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 undesirable discharge be upgraded to honorable in order to qualify for “veteran status in job search.”  He states that he “can’t be punished the rest of [his] life for something as minor as [his] charges were” and notes that “criminals get forgiven faster….”  He indicates that he has learned his lesson and has not had any trouble with the law since his discharge.  The applicant submits no documentation to support his application.

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 6 October 1969 and successfully completed basic and advanced individual training as an artillery crewman.  He was initially assigned to Fort Bliss, Texas and in February 1971 was assigned to Vietnam.

On 18 June 1971 he was involved in a verbal altercation with his lieutenant and threatened to kill the officer.  The following day, while being transported for a medical evaluation he threatened to kill several other officers.  The applicant was ultimately placed in confinement as a result of the threatening communications.

When charges were preferred the applicant consulted with counsel and requested discharge in lieu of trial by court-martial.  A separation physical examination, conducted on 21 August 1971 found him medically qualified for separation with a physical profile of 1-1-1-1-1-1.  The applicant’s records contain documentation that indicates he was hospitalized for two days while in confinement for using heroin.  As a result of his drug use, it appears the applicant was evacuated from Vietnam in mid September.

The applicant’s request was approved and on 22 September 1971 the applicant was discharged under other than honorable conditions.  At the time of his separation he had completed 1 year, 11 months, and 17 days of active Federal service.

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 1972 and again in 1978 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

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 in 1978, the year the Army Discharge Review Board last acted on his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired in 1981.

The application is dated 27 May 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

__eb____  ___rjw__  ___jps__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022475	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999022475	
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.