MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  24 May 2000
	DOCKET NUMBER:  AR2000038984

	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. John M. Slone		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Mark D. Manning		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, that his records be corrected to show that he was honorably discharged from active duty.  He provides 3 letters of support.

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 on 31 July 1967 for a period of 3 years.  Upon completion of all required military training, he was awarded MOS 11B10, Light Weapons Infantryman, and transferred to Vietnam where he served from 5 January 1968 to 4 January 1969.  Following his tour of duty in Vietnam, he was transferred to Fort Jackson, South Carolina.  He reenlisted for 6 years at Fort Jackson on 5 December 1969.

On 13 April 1970, Special Orders Number 84, US Army Training Center and Fort Jackson, Fort Jackson, South Carolina directed his reassignment to the Overseas Replacement Station, Fort Lewis, Washington for ultimate assignment to the 7th Adjutant General Company, APO SF 96207 (Korea).  On 29 April 1970, he acknowledged receipt of orders assigning him to Korea with a reporting date to Fort Lewis, Washington on 23 May 1970. 

On 23 May 1970, after a delay enroute (leave), he failed to report to Fort Lewis and was reported as being absent without leave (AWOL).  On 9 September 1975, he was apprehended by civil authorities and returned to military control on 12 September 1975.

During the period 12 to 29 September 1975, he was in pre-trial confinement by military authorities.  On 12 September 1975, his commander preferred court-martial charges against him for his AWOL of 1,935 days.  Although proceedings under chapter 10, Army Regulation 635-200 are not in the available records, on 11 November 1975, the appropriate separation authority approved the applicant’s discharge in lieu of trial by court-martial under chapter 10, AR 635-200 and directed issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

On 18 November 1975, at the applicant’s request, he was furnished a letter explaining the reason for his discharge on 20 November 1975 as conduct triable by court-martial.

On 20 November 1975, he was discharged under the above-cited regulation.  His Report of Separation indicates he had 2 years, 4 months and 4 days of creditable service during his first period of active duty and 7 months and 9 days during his second with 1,953 days of lost time.  During his first period of active duty, he was entitled to award of the Army Commendation Medal, the Purple Heart with 2nd Oak Leaf Cluster, the National Defense Service Medal, the Combat Infantryman Badge, the Vietnam Service Medal, and the Vietnam Campaign Medal with 60 Device.

There is no evidence that the applicant applied 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 20 November 1975, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 20 November 1978.

The application is dated 29 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

__JS____  ___MW___  __MM___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038984	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
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	Discharge upgrade	
2.		
3.		
4.		
5.		
6.