MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            23 March 2000     
	DOCKET NUMBER:   AR2000036143

	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. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James e. Anderholm		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 under other than honorable conditions discharge be upgraded to a general discharge.  He states that he was an alcoholic at the time he entered the military and as a result “did a lot of things that wasn’t normal.”  He notes that he has been sober for 30 years and if he could fight for his country again he would.  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 were apparently lost or destroyed as a result of the 1973 fire at the National Personnel Records Center.  Information contained herein was extracted from separation documents provided by the applicant.

The applicant was a member of the Enlisted Reserve Corps and was on active duty for training between 3 December 1955 and 15 June 1956.  He was honorably discharged from that period of active duty.

On 8 January 1957 the applicant entered active duty for a period of three years.  He performed duties in the supply field and served nearly 10 months overseas.

On 24 December 1958 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-208.  Documents associated with his administrative separation action were not available to the Board but are presumed to have been conducted in accordance with applicable laws and regulations.

Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an under other than honorable conditions discharge (undesirable) was normally considered appropriate.

The Manual for Courts-Martial, as then in effect, and the edition currently effective, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.  That this standard of conduct is accepted not only by the military but by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

There is no evidence that the applicant applied to the Army Discharge Review Board for 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 24 December 1958, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 24 December 1961.

The application is dated 2 August 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

___slp__  ____ra__  ____jea_  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR2000036143	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
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.