MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 August 1999                  
	DOCKET NUMBER:   AR1999024989

	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	
	Ms. Camilla Pugh		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		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:  In effect, that his undesirable discharge be upgraded to honorable.  The applicant states that racial discrimination and a disregard for his medical condition has been a handicap since early 1955.

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:

He was drafted in the Army on 9 September 1954.  He was discharged Under Other Than Honorable Conditions (UOTHC) on 26 September 1956.

During his service he was counseled and received nonjudicial punishment for unsatisfactory performance, AWOL, and misconduct.

He was convicted by two summary courts-martial for misconduct and by a special court-martial on 29 March 1956 for using a forged pass.  His sentence consisted of a forfeiture of pay and confinement at hard labor.

On 23 April 1956, he was ordered to appear before a board of officers to determine if he should be discharged from the service under the provisions of Army Regulation 615-368, for unfitness by reason of undesirable habits or traits.  The applicant appeared before the board without counsel.  He elected not to testify and elected not to submit a statement in his own behalf.

The board recommended that he be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate.  The appropriate authority approved the finding and recommendation of the board of officers on 
14 May 1956.

Accordingly, the applicant was discharged under other than honorable conditions on 26 September 1956, under the provisions of Army Regulation 615-368, for unfitness.  He was credited with 1 year, 10 months, and 1 day of net service for this period, and 75 days of lost time due to AWOL and confinement. 

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.

Army Regulation 615-368, in effect at the time, set forth the basic authority for 
the separation of enlisted personnel by reason of unfitness.  That regulation 
provided for the discharge of individuals who had demonstrated their unfitness 
by giving evidence of undesirable habits of character manifested by conduct.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 26 September 1956, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 26 September 1959.

The application is dated 3 March 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

jhk______  wtm ____  jpi______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 11	
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.		
2.		
3.		
4.		
5.		
6.