MEMORANDUM OF CONSIDERATION

	IN THE CASE OF.

	BOARD DATE:            31 May 2000                     
	DOCKET NUMBER:   AR1999023371

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelly		Member	
	Mr. John P. Infante		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 records be corrected by upgrading his discharge to honorable and by changing his separation grade to E-2.  The applicant states that he was never reduced in rank, so he should have been separated in the grade of E-2.  In support of his request the applicant submits a copy of his May 1975 DD Form 214 (Report of Separation from Active Duty).

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 23 May 1974, he enlisted in the Regular Army for a period of 3 years.

On 22 October 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for failure to go to his appointed place of duty on 21 October 1974; and for being absent without leave (AWOL) from 21-22 October 1974.  His punishment was forfeiture and extra duty.

On 16 January 1975, he accepted NJP under the provisions of Article 15, UCMJ for being absent without leave (AWOL) from 26 December 1974 to 8 January 1975.  His punishment was reduction to pay grade E-1, and extra duty.

Unit Orders Number 9, dated 28 January 1975, reduced the applicant to pay grade E-1, as the result of Article 15, UCMJ, with an effective date of 23 January 1975.

On 30 January 1975, he accepted NJP under the provisions of Article 15, UCMJ for being AWOL from 27 January 1975 to 29 January 1975.  His punishment was a forfeiture.

On 7 May 1975, his company commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-37, the Army’s Expeditious Discharge Program with a general discharge certificate.  His commander indicated that the basis for his action was, that he (the applicant) was an unproductive soldier who lacked the potential for success in the Army; that he had proven to be a detriment to every section he had been assigned to; that he required constant supervision; and received three Article 15’s for absences, poor duty performance and failure to comply with instructions. The applicant was informed that he had the right to consult with counsel, decline the discharge, and submit statements in his own behalf.

Having been advised on his rights, the applicant authenticated a statement with his initials and signature.  He acknowledged notification of the contemplated action to discharge him from the service, voluntarily accepted the proposed action to discharge him, indicated that he understood the ramifications of receiving a general discharge, and chose not to submit a statement in his own behalf.

On 8 May 1975, the appropriate separation authority approved the applicant’s discharge and issuance of a general discharge.

On 15 May 1975, the applicant was separated in the pay grade of E-1, under the provisions of Army Regulation 635-200, paragraph 5-37 and issued an under honorable conditions discharge.  His Report of Separation indicates he had 11 months and 3 days of active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-37 provides the policies and procedures for separating enlisted personnel under the Army’s Expeditious Discharge Program.

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 15 May 1975, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 15 May 1978.

The application is dated 25 February 1999 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

___jev__  ___sk____  ___jpi___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999023371	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000531	
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. 142.0		
2.		
3.		
4.		
5.		
6.