MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            3 August 2000     
	DOCKET NUMBER:   AR2000036055

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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, disability retirement or separation.  He states that he was hospitalized for schizophrenia while a member of the U.S. Army Reserve (USAR) and was unjustly discharged.  He states, in a self-authored statement, that his records were falsified to show that his unit attempted to contact him even though he had provided them with information concerning his hospitalization.  He notes that ultimately he was “discharged under false pretence” and never received any military pay after his separation from active duty.  He maintains that he should have received a medical discharge instead of the general discharge because the discharge was based on “false and misleading information that was placed in [his] file.”  The applicant submits no evidence in support of his request except his self-authored statement.

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 USAR on 30 April 1974 and successfully completed basic and advanced individual training.  He was returned to his USAR unit in December 1974 when he was released from active duty upon completion of his training requirements.

Documents in the applicant’s file indicate he never attended any unit drill meetings after his release from active duty.  His records contain numerous letters, some of which were returned as undeliverable, notifying him of his delinquent status.  On 20 August 1975 the applicant was notified that he was being processed for administrative separation from the USAR for non-attendance at drill.  A returned mail receipt dated 22 August 1975 acknowledged the notification document.

The applicant did not respond to the notification and on 16 March 1976 the applicant was separated with a general discharge under the provisions of Army Regulation 135-178.

No medical records were available to the Board.

Army Regulation 635-40 states, in effect, that Reserve Component soldier will be separated from the Reserves when they no longer meet medical retention standards.  Such separation will be without benefits if the unfitting condition results from an injury which is due to the intentional misconduct or willful neglect of the individual, if the disability was incurred during a period of unauthorized absence, or if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

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 13 March 1976, the date the applicant was discharged from the USAR.  The time for the applicant to file a request for correction of any error or injustice expired on 13 March 1979.

The application is dated 23 December 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

___jns__  ___cmf__  ___esc__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000036055	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
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.