MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 1999    
	DOCKET NUMBER:   AR1999022996

	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. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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 honorable or general.  

He states that [while in the United States on leave from Germany], he lost his bill fold and his papers, and turned himself in to an Army base in Norfolk, but no one would help him, even though he told them that he would be AWOL in a few days. He stated that he had a round trip ticket back to Germany [however, he lost all his papers] and he was going to return.  He had a lot of stress after, and smoked and drank a lot.  He only had a sixth grade education, and was helped in enlisting in the Army.  It was no fault of his that he could not get back to Germany.  He even called Washington, D.C., for assistance, to no avail.

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, completed training and was assigned to Fort Dix, New Jersey for further assignment to a unit in Germany.  On 11 January 1972 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 18 December 1971 to 10 January 1972.

In January 1972 he was assigned to a cavalry squadron in Germany.  On           26 April 1972 he received nonjudicial punishment for willfully disobeying a lawful order.  On 16 June 1972 he received nonjudicial punishment for dereliction of duty and for willfully disobeying a lawful order.  On 10 September 1972 he received nonjudicial punishment for absenting himself from his place of duty.

In a 30 January 1973 document the applicant’s commanding officer stated that the applicant had departed on leave in the United States on 21 December 1972, and was due to return on 19 January 1973.  He was AWOL as of                       20 January 1973.

The applicant was apprehended by civilian authorities in Newcastle, Virginia on 29 June 1974 and returned to military control and assigned to Fort Meade, Maryland.

The applicant was discharged at Fort Meade on 20 August 1974 under conditions other than honorable under the provisions of Army Regulation       635-200, chapter 10.  He had 1 year, 7 months, and 28 days of service,           and 526 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 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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.  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 20 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 20 August 1977.

The application is dated 3 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

___chl__  ___slp__  ___clg____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022996	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.