MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           24 August 2000
	DOCKET NUMBER:   AR2000037336

	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:  That his General Discharge (GD) be upgraded to an Honorable Discharge (HD).  He states that he would like to reenter the Army and does not wish to suffer the consequences of a less than fully honorable discharge any longer.  He adds that he has been drug free for the past 3 years.  He provides a handwritten letter in support of his application.

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 4 years on 8 September 1982.  Upon completion of all required military training, he was awarded military occupational specialty 63H (Track Vehicle Repairer) and assigned to Fort Knox, Kentucky.

The applicant developed a pattern of unsatisfactory performance as evidenced by two charges of driving under the influence, two positive urinalysis tests for marijuana use, and numerous negative counseling statements.  His chain of command, after attempting various rehabilitative measures, contemplated separation action.

The evidence of record shows that on 9 March 1984, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance, with a GD.  The applicant was advised of his rights.  He consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended waiver of further rehabilitative efforts.  The intermediate commander, on 19 March 1984, reviewed the proposed discharge action and recommended approval with a GD.  On 26 March 1984, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.  

On 30 March 1984, the applicant was discharged with GD under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance.  At the time of discharge, the applicant had 1 year, 6 months, and 23 days on his enlistment.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Army policy states that a general discharge, under honorable conditions is normally considered appropriate, but an honorable discharge may be granted in meritorious cases.

The applicant did not apply 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 30 March 1984, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 30 March 1987.

The application is dated 29 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	AR2000037336	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19840330	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	A27.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.