MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 August 1999   
	DOCKET NUMBER:   AR1999024047

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 honorable.  

He states that the type of discharge he received was unjust because at that time he was having a lot of problems, to include the loss of his godmother, and drug problems.  He was depressed and under stress, but was not offered any help.

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 on 8 November 1973.  At the time of his enlistment he admitted to certain law violations, speeding, no state drivers license, improper vehicle lights, and again, no state drivers license.  He admitted no others.  The applicant was assigned to Fort Jackson, South Carolina, for basic training.

On 4 February 1974 the applicant’s commanding officer notified the applicant that he was initiating action to eliminate him from the service for fraudulent entry for concealment of civil convictions – possession of illegal firearm, burglary, grand theft auto, assault, reckless driving, and driving without a license.  The applicant requested consideration of his case before a board of officers.  The results of that board are unknown.  However, on 7 March 1974, the convening authority approved  the [recommendation] that the applicant be retained in the service.  

The applicant completed basic training, and advanced training at Fort Knox, Kentucky.  In May 1974 he was assigned to an armor battalion in Korea as an armor crewman.

On 21 August 1974 the applicant received nonjudicial punishment under Article 15, UCMJ, for violation of a lawful general regulation.

A military police report indicates that the applicant assaulted another soldier on 22 February 1975.  On 23 February the applicant’s commanding officer ordered the applicant into arrest, which included restriction to his quarters.  A 23 February statement by a CQ (charge of quarters) indicates that the applicant was missing from his unit.  A 28 February 1975 statement indicates that the applicant’s commanding officer formally read the applicant court-martial charges, and at that time lifted his arrest to quarters; however, informed him that he was restricted to his billet, place of worship, latrine and mess hall during off duty hours.  In a statement by the unit CQ, he said that on 3 March 1975 the applicant was not in his unit.  A statement indicates that an officer checked on the applicant during the evening of 7 March 1975, and the applicant was not in his quarters.

A personnel action form indicates the applicant was placed in pre-trial confinement on 14 March 1975.  On 19 March 1975 he was AWOL, having escaped the custody of the military police.  He was apprehended on 4 April 1975. 

On 23 April 1975 the applicant submitted a statement in support of his application for discharge under the provisions of Army Regulation 635-200, chapter 10.  He stated that he refused to get a haircut and was told that he was off the boxing team.  He received a letter that his aunt had died, got drunk, and missed an alert. He received nonjudicial punishment.  He received a rehabilitative transfer to another company.  He continued by outlining his problems with the NCOs in his unit, stated that he wanted a transfer, but was refused.  He stated that he received nonjudicial punishment on three more occasions, two for missing formations, and one for refusing to get a haircut.  He stated that he had problems with the personnel in his unit because he was on the boxing team.  He related an incident about a struggle between two sergeants, stating that he was the victim, however, his commander placed him under company arrest.  He related problems with his commanding officer, failure to salute, implying that he was being harassed.  He said that he went AWOL because he felt that he had been pushed to the extreme.  He returned to his unit on 14 April 1975.  He was searched prior to going inside the [stockage liaison va?].  And the NCO removed cigarettes, suspected to be marijuana, which the applicant said was planted on him.  He stated that he felt that his resignation from the Army would be in the best interests of all concerned.   

On 8 May 1975 the separation authority approved the applicant’s request for discharge for the good of the service, and directed that he be furnished an Undesirable Discharge Certificate.

On 14 May 1975 the applicant went AWOL.  A 5 November 1975 2nd Infantry Division message indicates that the applicant was returned to military control and was in pretrial confinement.

Orders published on 14 November 1975 assigned the applicant to the transfer point at Oakland Army base for separation processing with a reporting date of      20 November 1975.

On 8 December 1975 the applicant was operated on at Letterman Army Medical Center, Presidio of San Francisco, to remove needles in his right forearm and left wrist.   
A clinical record cover sheet, dated 18 December 1975 from Letterman Army Medical Center, Presidio of San Francisco, indicates that the applicant was diagnosed with improper use of heroin, LSD, cocaine, and barbiturates. 

A 22 December 1975 clinical record indicates that the applicant was admitted to the hospital on 1 December 1975 for needles in both forearms and was discharged from the hospital on 16 December 1975.  He broke off needles in his arms in October 1975 while on a hunger strike in the stockade in Korea.  Both needles were removed without difficulty in the operation on 8 December 1975.

The applicant was discharged on 15 January 1976.  He had 1 year, 9 months, and 17 days of service, and 142 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.

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 January 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 January 1979.

The application is dated 20 January 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

___rvo__  ___jma__  ___mw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999024047	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.