MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           24 August 2000
	DOCKET NUMBER:   AR2000036687

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 Bad Conduct Discharge (BCD) be upgraded in order that he may receive Department of Veterans Affairs (VA) benefits.  In support, he provides copies of his two DD Forms 214, Report of Separation From Active Duty.

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 enlisted in the Regular Army for 2 years on 24 September 1974.  Following training, he was awarded military occupational specialty 76Y (Supply Specialist) and served at Fort Carson, Colorado.  While at Fort Carson, he accepted NJP (nonjudicial punishment) under Article 15, Uniform Code of Military Justice, on three occasions for being absent without leave (AWOL).  He was separated with an Honorable Discharge on 22 October 1976.  He had 1 year, 11 months, and 29 days of creditable service and 31 days of lost time.  

On 5 December 1979, the applicant, without mentioning his prior service, enlisted in the Regular Army for 6 years.  He was trained as an 11B (Light Weapons Infantryman) and served in Korea and at Fort Ord, California.  While in Korea, he was convicted by a special court-martial for ration control violations and AWOL.  He was sentenced to confinement at hard labor for 45 days and forfeiture of $200.00 per month for 2 months.  While at Fort Ord, he was convicted by a second special court-martial for a period of AWOL exceeding 2 years.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $350.00 per month for 3 months, and a Bad Conduct Discharge.  His conviction was upheld on appellate review and the discharge was executed on 30 October 1985.  He had 4 years and 15 days of creditable service and 1,007 days of lost time.

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 30 October 1985, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 30 October 1988.

The application is dated 31 January 2000 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

__gdp___  __clg____  __alr____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000036687	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19851030	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.