MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 January 2000                             
	DOCKET NUMBER:   AR1999028601

	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:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		Member	
	Ms. Barbara J. Ellis		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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.  He states, in effect, that he was only 17 years old when he enlisted in the Army; that right after he enlisted into the Army his grandmother lost both her legs due to Diabetes; that he was told horror stories about Vietnam which scared him to death; that when he was a child his grandmother was over protective because he was abandoned by his mother.  He further states that he would like to apologize to the Federal Government; that he is a family man and a minister.  He continues to say that he is willing to volunteer his services on weekends at the local Veterans Hospital.        

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 2 October 1949.  On 17 April 1967, the applicant enlisted in the Regular Army for 3 years. 

On 23 June 1967, the applicant was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) from 3 to 9 June 1967.  He was sentenced to confinement at hard labor for 4 months (suspended for 3 months) and a forfeiture of $60.00 pay per month for 4 months.  

On 26 August 1967, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failure to go to his appointed place of duty at the prescribed time.  His imposed punishment was a forfeiture of $22.00 pay, 14 day restriction and extra duty.

On 2 October 1967, the applicant was convicted by a SPCM of being AWOL from 26 August to 22 September 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $64.00 pay per month for 6 months.

The applicant’s record indicates that he went AWOL from 9 to 12 November 1967.  However, the particulars are missing from his file. 

On 25 November 1967, 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 record of misconduct and action, 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 5 December 1967, the applicant was found physically fit for retention.

On 18 December 1967, 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 26 January 1968, the Commanding General approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  On 
2 February 1968, 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 and 5 days of creditable active service and 194 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 2 February 1968, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 2 February 1971.

The application is dated 22 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

__rgh___  __gfg___  __bje___  CONCUR WITH DETERMINATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028601	
SUFFIX		
RECON		
DATE BOARDED	20000120	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19680202	
DISCHARGE AUTHORITY	AR635-212 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.	144.5100	
3.		
4.		
5.		
6.