MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            30 March 2000                  
	DOCKET NUMBER:   AR1999024099

	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.  

	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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.  The applicant states that his discharge should be upgraded because of mitigating factors such as combat shock and wounds received in action; his overall service record; his age and maturity; DOD Directive 1332.28; PTSD not being established by his command at the time of his discharge; and his not receiving a psychological evaluation by medical or mental health personnel prior to his discharge.  He also states that he was told that his discharge would be automatically upgraded 6 months after his discharge from active duty.  The applicant submits letters of support from the Ocean Medical Group, the County of Los Angels Department of Mental Health; and character references from the Gardena Community Adult School, and an attorney.  The applicant also provided a copy of his Official Military Personnel File (OMPF).

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 1 April 1969, he enlisted in the Regular Army for a period of 3 years.  He completed basic training at Fort Knox, Kentucky, and advanced individual training at Fort Polk, Louisiana.  

The applicant served in Vietnam from 2 September 1969 to 30 October 1970.

Between December 1969 and July 1971, the applicant received 5 nonjudicial punishments, under the provisions of Article 15, Uniformed Code of Military Justice, for disobeying a lawful order, abandoning his post, breaking restriction, failure to go to his appointed place of duty at the time prescribed, and for being absent without leave (AWOL) from 28 May to 2 Jun 1971.  His punishments included forfeitures, restriction, extra duty, and reduction to pay grade E-3. 

On 17 July 1970, he was convicted by a special court-martial, for failure to go at the time prescribed to his appointed place of duty on 8 May 1970; for disobeying a lawful order on 9 May 1970; for being disrespectful towards a superior commissioned officer on 9 May and 12 May 1970; and for being AWOL from     4-24 June 1970 and 5-12 July 1970.  His sentence was a forfeiture and confinement at hard labor for 2 months (suspended for 2 months).  

On 28 August 1971, he was convicted by a summary court-martial for failure to go at the time prescribed to his appointed place of duty.  His sentence was a forfeiture, restriction, and reduction to pay grade E-2.

On 21 September 1971, the applicant’s commander notified him of his intent to recommend his discharge, under the provisions of Army Regulation 635-212, paragraph 6a(1), for unfitness, and advised him of his rights.

On 21 September 1971, after consulting with counsel, the applicant acknowledged that he understood the basis for his commander’s contemplated action.  He requested consideration of his case by a board of officers and a personal appearance before the board, he declined to submit statements on his own behalf.

On 24 September 1971, a Mental Status Evaluation and a Medical Examination cleared the applicant for separation.  On the applicant’s Medical Examination he states that “upon leaving the Army, I am in a good state of health”.

On 19 November 1971, the proceeding of a Board of Officers convened to determine if the applicant should be eliminated from the service prior to his normal expiration term of service was found to be legally sufficient, and recommended the Board’s recommendation be approved.

On 3 December 1971, the appropriate separation authority approved the applicant’s discharge for unfitness, and directed that he be reduced to pay grade 
E-1, and issued an undesirable discharge.

On 10 December 1971, the applicant was discharged under the provisions of Army Regulation 635-212, with an under conditions other than honorable discharge. 

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to separation for unfitness because of but not limited to, frequent incidents of a discreditable nature with civil or military authorities; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts.  When separation for unfitness was warranted an undesirable discharge 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 10 December 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 10 December 1974.

The application is dated 15 January 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

___bje___  ___hof__  ___ewl__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999024099	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
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. 110.00		
2.		
3.		
4.		
5.		
6.