MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 January 2000                            
	DOCKET NUMBER:   AR1999028286

	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.  

	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.  He states, in effect, that he was married on 27 April 1968, 11 days later he was drafted into the military.  He had all the intentions of fighting for his country until he found out his wife was unfaithful.  He further states that he does not believe that he was unfit when he entered the Army, but once he found out his new wife was cheating on him he may have become unfit, he was only 19 years old.

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 born on 19 September 1948.  He completed 11 years of formal education.  On 8 May 1968, the applicant was inducted into the Army of the United States for 2 years.  The highest grade he achieved was pay grade E2.

On 12 June 1969, the applicant was convicted by a special court-martial (SPCM), of four specifications of being absent without leave (AWOL) from 3 to 29 August 1968, from 4 to 19 September 1968, from 24 September 1968 to 23 April 1969 and from 1 to 8 May 1969.  He was sentenced to confinement at hard labor for 
6 months and a forfeiture of $46.00 pay per month for 6 months.

On 1 April 1970, the applicant was convicted by a SPCM of being AWOL from 
29 August 1969 to 4 February 1970.  He was sentenced to confinement at hard labor for 5 months and a reduction to pay grade E-1.

On 16 April 1970, a mental status evaluation found the applicant qualified for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

On 1 May 1970, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness.  The commander’s recommendation was based on the applicant’s chronic AWOLs and actions, which indicated that he could not be rehabilitated for productive military service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  

On 4 June 1970, the Commanding General approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  On 11 June 1970, 
The applicant was discharged in pay grade E-1, under the provisions of Army Regulations 635-212, for unfitness with a discharge UOTHC.  He had completed 3 months of creditable active service and 657 days of lost time. 

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 11 June 1970, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 11 June 1973.

The application is dated 30 June 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

__inw___  ___sk___  __eja___  CONCUR WITH DETERMINATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028286	
SUFFIX		
RECON		
DATE BOARDED	20000127	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19700611	
DISCHARGE AUTHORITY	AR635-212 . . . . .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 	144.5000	
2.		
3.		
4.		
5.		
6.