MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 August 1999     
	DOCKET NUMBER:   AR1999024614

	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. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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 undesirable discharge be upgraded to honorable.

The applicant states that his military record was impeccable.  He states that his discharge was too harsh considering his entire military service.  He says that under current standards, he would not have received the type of discharge that he did receive; that his conduct and efficiency ratings were good or pretty good, that he received awards and decorations, and that he was wounded stateside.  He says that his promotion record shows he was a good soldier and that he has been a good citizen since his discharge.  His record of nonjudicial punishment and record of convictions by civil authorities were only for isolated or minor offenses.  His ability to serve was impaired by his youth and immaturity.   

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 21 April 1969, completed basic training at Fort Lewis, Washington, and in June was transferred to Fort Rucker, Alabama for advanced training.  On 23 July 1969 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 10 July 1969 to 15 July 1969.  He was in military confinement from 15-18 July 1969. 

On 19 November 1969 the applicant pled guilty to grand larceny and was adjudged guilty by a Dale County, Alabama circuit court, and sentenced to two years in the penitentiary.  He was confined at Kilby Prison in Montgomery, Alabama.

On 29 April 1970 the applicant’s commanding officer advised the applicant that he was being considered for discharge under the provisions of Army Regulation 635-206 because of conviction by a civil court.  The applicant consulted with counsel and waived consideration of his case by a board of officers.  He elected not to submit statements in his own behalf.  The applicant stated that he did not intend to appeal his conviction in civil court.  He stated that he understood the nature and consequences of the under conditions other than honorable discharge that he might receive.

On 11 June 1970 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged and that he be issued an Undesirable Discharge Certificate.  On 26 June 1970 the separation authority approved the recommendation and stated that the applicant would be furnished   an Undesirable Discharge Certificate.  He was discharged on 14 July 1970.  He had 3 months and 1 day of service and 357 days of lost time.
Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was 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 14 July 1970, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 July 1973.

The application is dated 12 June 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

__fkm___  ___inw__  ___gdp__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999024614	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
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.