MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 March 1999                  
	DOCKET NUMBER:   AR1999022569

	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. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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, physical disability retirement or separation.  

The applicant states that he entered the Army in 1970, fought in Vietnam and served his time.  He went to Germany, and returned home for Christmas, had marital problems, and decided not to return to Germany.  He tried to reenlist in 1974; however, could not do so because he had diabetes.

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 on 27 July 1970, completed infantry and airborne training, and in April 1971 was assigned to an airborne unit in Vietnam, where he was awarded the Combat Infantryman Badge.  In July 1971 he returned to the United States and was assigned to an airborne unit at Fort Campbell, Kentucky.  On 30 June 1972 the applicant reenlisted for six years. 

On 17 July 1973 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 25-26 June 1973, for AWOL from 4-11 July 1973, and for breaking restriction on 14 and 15 July 1973.  He was reduced to pay grade E-3, and confined in correctional custody from 18 July to 30 July 1973.

In October 1973 the applicant was assigned to an infantry unit in Germany.

The applicant was AWOL from 7 January 1974 until his return to military control at Fort Knox, Kentucky, on 17 July 1974.  On 5 August 1974 a charge sheet was prepared by the special processing company at Fort Knox, charging the applicant with a violation of the UCMJ, for the aforementioned AWOL.  

A 23 July 1974 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial code of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that he was in fair health. 

The applicant was discharged at Fort Knox, Kentucky on 30 August 1974, under the provisions of Army Regulation 635-200, chapter 10.  His discharge was under other than honorable conditions.  He had 1 year, 7 months, and 13 days of service, and almost 2 years of prior active service.  He had 199 days of 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 30 August 1974, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 30 August 1977.

The application is dated 24 July 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

___jav__  ___rwa__  _alr______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022569	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.108.00		
3.		
4.		
5.		
6.