MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 June 2000                  
	DOCKET NUMBER:   AR1999028598

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman 		Member	
	Ms. Margaret V. Thompson 		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, physical disability discharge or retirement.

The applicant states that he was scheduled to receive a medical discharge because of a non-union fracture to this right hand, an injury that he incurred before he entered the Army.  He has now had three operations on his back and five discs removed from his back. 

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 28 February 1970 and was assigned to Fort Dix, New Jersey for training.

A 15 April 1970 medical report shows that the applicant had a car accident in 1969, resulting in a fracture to his left thumb and a painful right wrist.

On 17 April 1970 the applicant requested separation for the convenience of the government, stating that he was medically unfit for military service due to the diagnosis of a non-union fracture to his right carpal navicular.

A 14 May 1970 medical board determined that the applicant had pain on the dorsal side of his right wrist and had been complaining of weakness after using his right wrist to do push-ups or the parallel bars.  His condition was diagnosed as non-union, right carponavicular, an injury that existed prior to his service (EPTS).  The board found that the applicant was unfit for induction in the service and recommended that he be separated from the service for his EPTS condition. The findings and recommendations of the board were approved.

On 19 May 1970 the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-9, and assigned the applicant to the transfer station for processing and discharge.

On 19 June 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for two counts of theft against fellow soldiers.

On 9 September 1970 charges were preferred against the applicant for forcefully stealing money from a fellow soldier, for two counts of disobeying a lawful order, for threatening to injure a soldier with a knife, and for willfully destroying government property. 
On 10 September 1970 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He declined to submit a statement in his own behalf.

The separation authority approved his request and directed that the applicant receive an Undesirable Discharge Certificate.  He was discharged on                28 October 1970.  He had 8 months and 1 day of service.

On 13 June 1974 the Army Discharge Review Board denied the applicant’s request to upgrade his undesirable discharge to an honorable discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-40 provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service. 

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the
officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence,
the case may be referred for disability processing. 

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 28 October 1970, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 28 October 1973.

The application is dated 14 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

___mvt__  ___owt__  ___kan__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999028598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
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.  177	142.00	
2.	108.00	
3.		
4.		
5.		
6.