MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 August 1999     
	DOCKET NUMBER:   AR1999022707

	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. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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, that his undesirable discharge be upgraded to a general discharge or that he be medically retired/separated because his hepatitis.  He states, in effect, that his hepatitis was incurred in the line of duty and as such “should have been service connected.”  He also states that he did not get along with a “Major Whittworth” and was promised an early discharge if he would “waive” his rights.  He states he “never was allowed legal counsel.”  He submits no evidence in support of his request.

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 26 November 1971.  

His records indicate he was AWOL for 7 days in March 1972 and served in Vietnam from May 1972 until August 1972.  In October 1972, while assigned to Fort Ord, California he again departed AWOL.  He was subsequently apprehended by civilian authorities and return to military control.  On 4 December 1972, while awaiting punishment for the October 1972 AWOL period, he again departed AWOL.

The applicant was apprehended by civilian authorities and returned to military control on 10 January 1973.  When charges were preferred, the applicant consulted with counsel (Captain Fanning, Defense Counsel, Fort Ord) and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  In a statement submitted in his own behalf he indicated he could not “cope with military life” and that indicated that if he was “forced to stay in the Army” it would mean more trouble for him and the Army.

A physical examination, conducted on 23 March 1973, found the applicant in good health and recorded no medical problems.  A mental health evaluation, conducted on 16 April 1973, found the applicant fully alert and oriented, his 

memory good, and his thought process clear and normal.  It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The separation authority approved the request and directed that an undesirable discharge be issued.  On 29 May 1973 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.

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/undesirable discharge is normally considered appropriate.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  The applicant has provided no evidence that he had any medically unfitting condition, which would have warranted disposition through medical channels.

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

The application is dated 15 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

___mdm_  __aao___  __ewl___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022707	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
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.