MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           31 August 2000
	DOCKET NUMBER:   AR2000038139

	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. Samuel A. Crumpler		Chairperson	
	Ms. Barbara Ellis		Member	
	Mr. Joe R. Schroeder		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 Undesirable Discharge (UD) be upgraded to a General Discharge (GD).  He states that he was discharged because of being absent without leave (AWOL), but this was because of marital problems and he just did not know what to do.  He cites his prior military service and his post-service conduct in support of his application.  He also provides reference letters dated 27 January 2000, 28 January 2000, 4 February 2000, 7 February 2000, and 13 February 2000.  All letters deal with his post-service conduct and a medical disability from which he now suffers.

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 3 years on 1 October 1958.  During this period of enlistment, he was AWOL for 1 day and he was convicted by a summary court-martial.  He received an Honorable Discharge (HD) on 9 October 1961 in order to reenlist for 6 years on 10 October 1961.

Following his reenlistment, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 11 through 14 November 1961.  He also was convicted by a summary court-martial for being AWOL from 2-4 January 1962 and 8-29 January 1962.  On 1 March 1962, the applicant was given a GD under the provisions of Army Regulation 635-209 for unsuitability.  He had a total of 3 years, 4 months, and 2 days of creditable service and 27 days of lost time.

On 3 May 1966, the applicant reenlisted in the Regular Army.  In his enlistment contract he only mentioned his service from 1 October 1958 through 9 October 1961 which ended with an HD.  He did not mention his service from 10 October 1961 through 1 March 1962 for which he received a GD.  In 5 August 1966, he was notified that he was being processed for separation based on fraudulent entry.  On 10 October 1966, the review authority directed that the applicant be retained on active duty.

The applicant was AWOL from 12 December 1966 through 12 February 1967 and from 9 December 1967 through 1 April 1968.  He was tried by a special court-martial on 29 April 1968 and convicted of being AWOL.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $60 per month for 6 months, and reduction to private (E-1).  The sentence to confinement was suspended and the forfeiture was reduced to $30 per month for 6 months.

The paperwork is not in the applicant's file, but his chain of command initiated action to separate him for unfitness under the provisions of Army Regulation 635-212.  There is documentation to show that he was given a separation physical and mental status evaluation, and cleared for separation.  On 2 July 1968, he was issued a UD for unfitness under the provisions of Army Regulation 635-212.  He had 1 year, 7 months, and 8 days of creditable service and 205 days of lost time.

The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his GD of 1 March 1962 and was denied.  There is no evidence that he applied to the ADRB for upgrade of his UD within that board's 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 2 July 1968, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 2 July 1971.

The application is dated 15 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

__sac___  __be____  __jrs____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038139	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19680702	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.