MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April 1999                   
	DOCKET NUMBER:   AR1999023165

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		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:  That his general discharge be upgraded to fully honorable with all remaining benefits.

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 for 3 years and entered active duty on 12 May 1971.  On his enlistment documents he stated that he had been arrested once in January 1970 for narcotics possession but the charges were dropped.  An FBI report forwarded to his unit on 15 September 1971 and again on 3 December 1971 shows that he was arrested twice in March 1970 for drug possession and certified to juvenile court, arrested in July 1970 for possession of a sawed off rifle, and arrested in April 1971 for burglary. This report also shows that, after he entered active duty, he was arrested twice in August 1971 for possession of marijuana.

While still in training he was punished under Article 15, UCMJ on 27 August 1971 for disrespect and disobeying a lawful order.  Again, while in training, he was convicted by summary court-martial of 16 days AWOL.  The approved sentence included confinement at hard labor for 25 days.  He completed infantry training and was assigned to Germany.

While in Germany he was punished 5 times under Article 15, UCMJ for various offenses including disrespect, disobeying orders, leaving his guard post, and absence from duty.

On 26 July 1972 the applicant was advised of contemplated separation for ineffective duty performance and failure to demonstrate adequate potential for promotion.  He acknowledged that he had been counseled and understood the effects of a general discharge.  He declined to submit statements on his own behalf.

On 28 November 1972 the commander forwarded the request for separation including a record of counseling and rehabilitative efforts.  His conduct and efficiency were rated as poor and he was pending additional action under Article 15, UCMJ.  The separation authority, a major general, approved the recommendation and directed issuance of a general discharge.

Effective 23 April 1973 the applicant was separated in grade E-1 under the provisions of Army Regulation 635-200.  He had 1 year, 10 months, and 12 days creditable service and 30 days lost time.

Army Regulation 635-200, in effect at the time, provided for the separation of enlisted personnel.  The regulation, in pertinent part, provided for the involuntary separation of a soldier whose performance of duty and potential for continued service fell below acceptable standards.  Individuals separated under this provision were authorized either an honorable or general discharge based on their overall character of service.

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 23 April 1973, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 April 1976.

The application is dated 10 April 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

__JNS___  __RVO___  __CLG___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023165	
SUFFIX		
RECON		
DATE BOARDED	19990427	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19730423	
DISCHARGE AUTHORITY	AR 635-200, CH 5	
DISCHARGE REASON	A30.07	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.