MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999  
	DOCKET NUMBER:   AR1999025250

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 dishonorable discharge be upgraded to general.

The applicant states that he regrets the crime he committed, and wishes that he could undo his actions.  He served his time and was released a changed man.  He states that his opportunities are limited because of his past record, and accordingly requests that his discharge be upgraded to general, in order that he can provide a decent and prosperous life for his family and himself.   

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 6 January 1981, completed training and in April was assigned to Fort Carson, Colorado as a cavalry scout.

On 14 April 1983 the applicant was arraigned and tried before a general court-martial at Fort Carson, and was found guilty of stealing $1200.00 from a fellow soldier, and of unlawfully entering that soldier’s room with the intent to commit larceny.  He was sentenced to be reduced to the grade of private E-1, to forfeit all pay and allowances, to be dishonorably discharged, and to be confined at hard labor for two and one-half years.

On 30 July 1984 the Army court of military review affirmed the findings of guilty and the sentence; and on 30 October 1984 the court of military appeals denied the applicant’s petition to grant a review of the decision by the Army court of military review.  

On 28 November 1984 the sentence of the court-martial was ordered to be duly executed, and the applicant was ordered to be confined in the disciplinary barracks at Fort Leavenworth, Kansas. 

The applicant was discharged on 10 January 1985.  He had 2 years, 3 months, and 5 days of service, and 641 days of lost time.

The maximum punishment authorized under the Manual for Courts-Martial for the offense of larceny is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.    

Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 3-10 states that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 January 1985, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 January 1988.

The application is dated 18 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

___sk___  __jea___  ___klw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.