MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             12 September 2000                 
	DOCKET NUMBER:     AR2000028284

	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. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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, disability separation or retirement.  The applicant states that he should have been discharged because of a mental impairment, which was caused by the death of his fiancé.  He states that he has been in and out of prison for most of his life, and it was the Army who turned its back on him when he needed help the most.

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 31 July 1959, he enlisted in the Regular Army for a period of 3 years.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Riley, Kansas.  He served in Germany from January 1960 to August 1961.

From June to December 1960, he received 6 company punishments for failure to repair, missing bed check, being disrespectful in language to a noncommissioned officer, and possession of alcohol in the billets.  His punishments included reduction, restriction and extra duty.

Between August 1960 and July 1961, he was convicted by 3 summary courts-martial for being absent without leave (AWOL) for a total of 47 days.  His sentences included forfeitures and confinement at hard labor.

On 8 June 1961, his commander recommended that he be eliminated from the service under the provisions of Army regulation 635-208, for unfitness, because of numerous incidents contrary to good discipline, and his repeated inability to obey rules.

On 8 June 1961, having been advised by legal counsel, the applicant acknowledged that he understood the ramification of receiving an undesirable discharge (UD), and requested that his case be heard by a board of officers.  He requested legal counsel and declined to submit statements in his own behalf.

On 12 and 13 June 1961, a neuropsychiatric evaluation and a physical examination, respectively, cleared the applicant for separation.  There were no medically unfitting conditions noted.

On 10 July 1961, a board of officers recommended that the applicant be discharged with an undesirable discharge because of frequent incidents of a discreditable nature with military authorities.

On 9 August 1961, the appropriate separation authority approved the discharge and directed the issuance of an undesirable discharge.

On 26 August 1961, the applicant was discharged in the pay grade of E-1, under the provisions of Army Regulation 635-208.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 2 years,       9 months and 12 days of creditable service and 47 days of lost time.

On 21 June 1963, the Army Discharge Review Board (ADRB) determined that the applicant’s discharge was proper and denied his request for an upgrade.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, a UD was normally issued.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the     3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 21 June 1963, the date the ADRB finalized its case.  The time for the applicant to file a request for correction of any error or injustice expired on 21 June 1966.

The application is dated 14 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

___cmf__  ___fe____  __cjs____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038284	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000912	
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.