MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            14 September 2000                  
	DOCKET NUMBER:   AR2000036936

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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 records be corrected by upgrading his discharge to honorable, in order to secure benefits from the Department of Veteran’s Affairs.  In support of his request the applicant submits a copy of an appeal he filed with the Board of Veterans’ Appeals.   

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:

On 9 July 1968, he enlisted in the Regular Army for a period of 3 years.  He completed basic training at Fort Benning, Georgia, and advanced individual training at Fort Eustis, Virginia.  He served in the Republic of Vietnam from March 1969 to March 1970.

Between October 1970 and February 1971, he accepted three (3) nonjudicial punishments (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order, failure to go to his appointed place of duty, and for being disrespectful to a commissioned officer.  His punishments included reduction, forfeitures, extra duty and restriction.   

On 25 February 1971, he was convicted by a special court marital for being absent without leave (AWOL) from 3 November to 2 December 1970.  He was sentenced to 45 days of hard labor without confinement, and reduced to pay grade E-1.

On 28 September 1971, a physical examination cleared the applicant for separation.

On 5 October 1971, his commander preferred court-martial charges against him for being AWOL from 23 February 1971 to 10 September 1971.

The applicant, after consulting with legal counsel on 15 September 1971, voluntarily submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He was advised of his rights, and indicated he understood the possible ramifications of an undesirable discharge certificate.

On 21 October 1971, the appropriate separation authority approved the applicant’s request and directed his reduction to pay grade E-1, and the issuance of an undesirable discharge certificate.

On 27 October 1971, the applicant was discharged with an undesirable discharge, under the above cited regulation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 2 years,       
7 months and 29 days of creditable service and 240 days of lost time.

On 27 September 1973, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

On 10 February 1976, the applicant was granted a full and unconditional pardon and granted a clemency discharge to replace his undesirable discharge.  The pardon was given for the AWOL offenses he committed, which formed the basis for his discharge.  

On 20 May 1977, the applicant’s discharge was upgraded to general under the Department of Defense, Special Discharge Review Program enacted in April 1977.  This program directed that all less than fully honorable discharges issued between 4 August 1964 and 28 March 1973 be reviewed for possible upgrade to honorable or general for those individuals who had either completed a normal tour of duty in Southeast Asia, been wounded in action, had received an honorable discharge from a previous period of service or had a record of satisfactory military service of 24 months prior to discharge. 

On 15 November 1978, the applicant was notified that the previous upgrading of his discharge had been re-reviewed by the Army Discharge Review Board as required by Public Law 95-126.  As a result of this review, the Board determined that his discharge did not qualify for upgrading under the new uniform standards for discharge, and therefore his discharge upgrade was not affirmed.  This review did not change or modify his upgraded discharge, but because of the new law, he would be unable to use the upgraded discharge to qualify for benefits under the Veterans Administration.

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 27 October 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 27 October 1974.

The application is dated 1 February 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

___rvo___  ___mkp_  ___eja__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000036936	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000914	
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.