MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            16 March 2000                  
	DOCKET NUMBER:   AR1999026833

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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 rank and military specialty be restored to what it was prior to his reduction and reclassification in September 1969.  He states, in effect, that all of his conduct and efficiency reports were excellent and that there was no reason to reduce him and keep him at Fort Benning away from his primary duties.  He notes that he was leaving “base dressed in civilian clothes…when [he] was stopped by an ignoble (sic) 1st sergeant who did not want [him] to report to [his] new duty station.”  He submits no evidence in support of his request.

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 entered active duty on 2 October 1967 and successfully completed basic and advanced individual training as a helicopter repairman (specialty 67N) prior to being assigned to Vietnam in April 1968.

In November 1967, while undergoing training, the applicant was punished under Article 15 of the UCMJ for failing to be at his appointed place of duty.  He was punished a second time in November 1968 for violating a lawful order (drinking beer in the barracks).

The applicant returned to the United States in April 1969 and was assigned to Fort Benning, Georgia as a wheeled vehicle repairman (specialty 63B).  

Orders published on 29 September 1969 at Fort Benning indicate the applicant was reduced from pay grade E-4 to pay grade E-3 effective 26 September 1969 as a result of misconduct.  A copy of the UCMJ action directing the reduction was not in records available to the Board.

On 10 February 1970 the applicant was again advanced to the grade of E-4 and awarded a primary specialty of 63B as a result of “on the job training.”  His original specialty, 67N, was withdrawn at the time of his promotion.  There is no indication the applicant was pending reassignment at the time of the September 1969 UCMJ action or the February 1970 promotion and reclassification action.

The applicant was honorably discharged on 5 October 1970 in the grade of E-4.  His primary specialty at the time of separation is listed as 63B.

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 5 October 1970, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 5 October 1973.

The application is dated 7 April 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

___JLP__  ____owt_  ___cjp__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999026833	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
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.