MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  			 

	BOARD DATE:           6 October 1999                            
	DOCKET NUMBER:  AR1999023274

	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	
	Mrs. Judy Blanchard-Miller 		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Roger W. Able		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 discharge under honorable conditions be upgraded to a general discharge.  He submits documents 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:

On 27 December 1965, the applicant was inducted into the Army of the United States for 2 years.  His military occupational specialty 11B10 (Light Weapons Infantryman). 

Between April 1966 and March 1968, the applicant was convicted by three special courts-martial for three specifications of being absent without leave from 16 to 29 March 1966, from 4 July to 7 September 1966 and from 6 March 1967 to
6 March 1968.  His punishment included confinements at hard labor, and forfeitures. 

A mental status evaluation found the applicant qualified for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

On 3 March 1969, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness.  The commander’s recommendation was based on the applicant’s continued course of discreditable conduct and action which indicated that he could not be rehabilitated for productive military service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  

The appropriate authority approved the recommendation and directed the issuance of a discharge UOTHC.  On 11 March 1969, the applicant was discharged in pay grade E-1, under the provisions of Army Regulations 635-212, for unfitness with a discharge UOTHC.  He had completed 6 months 26 days of creditable active service and 550 days of lost time. 

Army Regulation 635-212, then in effect at the time set forth the basic authority for the separation of enlisted personnel from active duty for unfitness or unsuitability.  Paragraph 6a (1) of that regulation provided, in pertinent part that service members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation.  A discharge UOTHC was normally 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 11 March 1969, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 11 March 1972.

The application is dated 28 September 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

__aao___  __vbc___  __rwa___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023274	
SUFFIX		
RECON		
DATE BOARDED	19991006	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19690311	
DISCHARGE AUTHORITY	AR635-212 . . . . .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	144.500	
2.	144.510	
3.		
4.		
5.		
6.