MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            19 October 2000                  
	DOCKET NUMBER:   AR2000038354

	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. Ernest W. Lutz		Chairperson	
	Mr. Christopher j. Prosser		Member	
	Ms. Tracy L. Pinson		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 by showing he received a medical discharge; and that he was separated in a pay grade higher than E-1.  The applicant states that he was told he was getting a medical discharge with full benefits because of an injury that occurred while he was on active duty; and that he was separated in an incorrect pay grade.  

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 28 February 1980, he enlisted in the Regular Army for a period of 3 years.
He completed advanced individual training at Fort Knox, Kentucky and was assigned to Germany for approximately 7 months.  

On 22 August 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 19 to 20 August 1980.  His punishment was extra duty. 

On 2 January 1981, he accepted NJP under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty.  His punishment was reduction to pay grade E-1, extra duty and a forfeiture.

The facts and circumstances concerning the applicants discharge are not in the available records, however on 10 February 1981, the applicant was released from active duty under the provisions of Army Regulation 635-200, paragraph 5-31, the Army’s Expeditious Discharge Program (EDP) for failure to maintain acceptable standards for retention.  His DD From 214 (Certificate of Release or Discharge form Active Duty) indicates he had 11 months and 12 days of active Federal service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then  in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty, or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army’s Expeditious Discharge Program.

There are no medical records in the applicant’s file, nor did he provide documentation to substantiate his claim of a medical injury while on active duty.  

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 10 February 1981, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 10 February 1984.

The application is dated 24 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

___ewl__  ___cjp___  ___tlp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038354	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
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.  142.0		
2.		
3.		
4.		
5.		
6.