MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 June 2000
	DOCKET NUMBER:  AR2000037184

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Arthur A. Omartian		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: That his records be corrected to show he was separated with a fully honorably characterization of service.  He provides a copy of his DD Form 214, dated 26 April 1955.  He alleges that after being convicted by a general court-martial for being absent without leave (AWOL) and desertion and serving confinement at hard labor, his attorney advised him that the charges were dismissed and he was reinstated on active duty.  He further indicates that he was recently denied permission to purchase a firearm by the Pennsylvania State Police based on his record of convictions in the Army.

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 partially lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records.

On 4 August 1950, he enlisted in the Army.  He completed his required training and was awarded MOS 4345 (Light Vehicle Driver).

On 18 May 1951, at Camp Chaffee, Arkansas, he was convicted by a Summary Court-Martial for being AWOL for the period 10 to 15 May 1951.  His sentence was a forfeiture of $25 pay per month for one month.

On 21 September 1951, at Indiantown Gap Military Reservation, Pennsylvania, he was convicted by a Special Court-Martial for being AWOL for the period       18 July to 1 September 1951.  His sentence included a forfeiture of $10 pay per month for two months and confinement at hard labor (CHL) for 2 months.

On 21 November 1952, at Indiantown Gap Military Reservation, he was convicted by a General Court-Martial of desertion from 6 December 1951 to      24 September 1952.  His sentence included a forfeiture of all pay and allowances, CHL for 1 year and a dishonorable discharge.  On 9 September 1953, while serving his CHL at the Disciplinary Barracks, Camp Gordon, Georgia, the unexecuted portion of his sentence was suspended and he was returned to active status.

On 26 April 1955, he was discharged and issued a General Discharge Certificate under Army Regulation 635-205.  His DD Form 214 indicates he had 2 years,      9 months and 5 days of creditable service and 732 days of lost time.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 26 April 1955, the date he was released from active service.  The time for the applicant to file a request for correction of any error or injustice expired on 26 April 1958.

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

__ls____  ___ra____  ___ao___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000037184	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
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         1.110	Characterization upgrade	
2.		
3.		
4.		
5.		
6.