MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            11 August 1999                  
	DOCKET NUMBER:   AR1999022598

	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. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		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 discharge under conditions other than honorable be upgraded to honorable.  

He states that combat related stressors led to the development of PTSD and these events contributed to discharge related conflicts.  He states that his conduct ratings were excellent until his last month in Vietnam and the development of PTSD symptoms led to problems resulting in his discharge.  He is now being treated for this condition and the VA is processing his service connected claim for treatment and compensation. 

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 October 1968, completed basic training and was assigned to Fort Knox, Kentucky for advanced training.  On 11 March 1969 the applicant was arraigned, tried, and pled guilty to AWOL from 31 January 1969 to 20 February 1969, before a special court-martial which convened at Fort Knox.  The applicant completed training as a clerk and was assigned to Fort Leonard Wood, Missouri.  In January 1970 he was assigned to Vietnam as a personnel specialist.

He was AWOL from 15 August to 17 August 1970.  The applicant was awarded the Army Commendation Medal for his meritorious service while in Vietnam.  He completed his tour and in February 1971 was assigned to Fort Rucker, Alabama, as a company clerk.  He was AWOL from 3 February to 14 February 1971, and AWOL again for 1 day on 2 March 1971.  

The applicant was again AWOL from 15 March 1971 until 1 April 1971.  He was in civil confinement in Atlanta, Georgia, while in an AWOL status, from                2 April 1971 to 6 July 1971.  His DA Form 20 (Enlisted Qualification Record) shows that he was arrested for stealing a car and a credit card, was tried in civil court, but the date and results of the trial were unknown.    

The applicant was AWOL from 4 September to 6 September 1971 and from         7 September to 2 November 1971.  He was in civil confinement from                   5 November 1971 to 16 January 1973.  A 22 June 1972 letter from an official in the Bureau of Prisons in Tallahassee, Florida, shows that the applicant had been committed to that institution for 3 years as a result of his conviction in U.S. District Court on 13 June 1972 for theft on a government reservation.

The applicant was discharged in absentia under conditions other than honorable under the provisions of Army Regulation 635-206, at Fort Benning, Georgia, on 16 January 1973.  He had 2 years, 1 month, and 22 days of service, and         650 days of lost time.

In a 17 November 1992 letter the VA informed the applicant that a decision had been made regarding his discharge from the service and that if he wished to be considered for treatment of possible service connected disabilities he needed to apply to a VA medical center.  He was also informed to bring in his upgraded (if granted) discharge to that office. 

In a 10 November 1998 comment, a person from the Department of Veterans Service stated that the applicant had been diagnosed with PTSD, which resulted in his behavior that led to his other than honorable conditions discharge.  He stated that he believed the applicant deserved to have his discharge upgraded, and that the applicant was currently being evaluated by the VA for service connected disabilities and that compensation for such disabilities depended upon his discharge upgrade.

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 16 January 1973, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 January 1976.

The application is dated 10 November 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

__jhk___  __wtm___  __jpi___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
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.