MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            13 June 2000                  
	DOCKET NUMBER:   AR19990248895

	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:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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 general or a disability separation.  He states that he was erroneously inducted into the Army.  In support of his request the applicant submits copies of his DD Form 214, medical examinations, clinical consultation sheets, and a physical profile record.  

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 17 May 1968, he was inducted into the Army of the United States.  

Between December 1968 and August 1971, the applicant was AWOL on numerous occasions accumulating over 1,400 days of lost time. 

On 7 January 1969, he was convicted by a special court-martial for being absent without leave (AWOL) from 5 June to 11 December 1968.  His sentence included a forfeiture and restriction.

The applicant’s medical records indicate that action was initiated in 1968, 1969 and 1971, to separate him for erroneous induction, because of an injury which existed prior to his entry on active duty.  However, in each case before board action could be finalized he went AWOL.

On 14 July 1972, the applicant was convicted by civil court for receiving, concealing and retaining stolen U.S. Postal Money Orders.  He was sentenced to 4 years imprisonment. 

On 9 February 1973, the applicant was notified that he was being recommended for an undesirable discharge, under Army Regulation 635-206, for his civil conviction. 

On 28 February 1973, he acknowledged receipt of his commander’s intent to separate him and requested consideration of his case before a board of officers, personal appearance before the board, and representation by appointed counsel.

On 1 August 1973, a board of officers determined that the applicant was undesirable for further retention in the military because of his civil conviction and recommended that he be released and issued an undesirable discharge certificate.

On 22 August 1973, the applicant was discharged and issued an under other than honorable conditions discharge.  His Report of Separation indicates he had 1 year,           2 months and 13 days of creditable service and 1,474 days of lost time.

Army Regulation 635-40, provides that an enlisted soldier may not be referred for, or continue, physical disability processing when actions have been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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 22 August 1973, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on     22 August 1976.

The application is dated 22 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

__eb____  ___jhk___  ___bje__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999024895	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
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.		
3.		
4.		
5.		
6.