MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 August 1999    
	DOCKET NUMBER:   AR1999022900

	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. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		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:  That his undesirable discharge be upgraded to a general discharge.  He states that “others with worse conduct have since been treated much less harshly.”  He notes that he was immature and lacked appreciation for the gravity of the situation at the time of discharge.  He contends he did not have any “meaningful legal counsel at the time of discharge” and that he had no help or counseling with his “substance abuse problems” while in the military.  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 the Army on 4 March 1960 after receiving a waiver for two civil charges (grand larceny for auto theft and disorderly conduct and assault and battery).  At the time of his enlistment he was nearly 18 years old, had completed 9 years of formal education and had a GT score of 117.  He successfully completed basic and advanced individual training prior to being assigned to Germany in July 1960 as a light vehicle driver.  

He was convicted by two summary courts-martial, one in October 1960 for AWOL and a second in April 1961 for being “disorderly in station.”  The applicant never advanced beyond pay grade E-2.  Although documents associated with his administrative separation are no longer in available files his separation document indicates he was discharged under the provisions of Army Regulation 635-208.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

The applicant indicated that his health was good during a separation physical examination conducted on 22 April 1961.  The examining physician found him qualified for separation with a physical profile of 1-1-1-1-2-1 (the P-2 representing a pre-exiting eye condition (myopia)).

On 28 June 1961 the applicant was discharge under other than honorable conditions.  At the time the applicant submitted his application to this Board he was a resident of the Kentucky State Reformatory in LaGrange, Kentucky.

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 28 June 1961, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 28 June 1964.

The application is dated 27 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

___lls__  ___le___  __alr______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022900	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990825	
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.