MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  14 September 2000
	DOCKET NUMBER:  AR2000039704

	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. Raymond V. O’Connor		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Ms. Margaret Patterson		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 to show he was honorably discharged.

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:

During the period 21 April 1971 to 9 August 1972, he served on active duty in the Army.  He completed his required training and was awarded military occupational specialty 11E (Armor Crewman).  He was advanced to private first class.

On 9 August 1972, he was honorably separated with 1 year, 3 months and        19 days of creditable service, for the purpose of reenlisting.  On 10 August 1972, he reenlisted in the Army.

On 13 April 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for his failure to go to his place of duty on 31 March 1973.  His punishment was a reduction to pay grade E-2.

On 25 April 1973, he accepted NJP under Article 15, UCMJ for his failure to shave; wearing a dirty uniform; and his failure to go to his place of duty.  His punishment included a forfeiture and extra duty.

During the period 4 December 1972 to 30 April 1973, the applicant was formally counseled on 30 occasions for job performance, personal hygiene, absenteeism, indebtedness, uniform violations and for his failure to go to his appointed place of duty.

On 30 April 1973, the unit commander notified the applicant of his intent to recommend his separation for unsuitability and of his rights.

On 26 April 1973 (sic), after consulting with legal counsel, the applicant waived consideration of and appearance before a board of officers; elected not to submit a statement in his own behalf; and, waived representation by legal counsel.

On 4 May 1973, the unit commander submitted the recommendation for separation of the individual concerned under Army Regulation 635-200, for Apathy.

On 14 May 1973, the appropriate separation authority approved the request for separation and directed issuance of a General Discharge Certificate (GDC).
On 30 May 1973, the applicant was discharged, in pay grade E-2, with a GD, under the above-cited regulation for unsuitability based on apathy.  His separation document indicates that he had 2 years, 1 month and 10 days of creditable service.

There is no record that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitation.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provided for the separation of personnel for unsuitability based on apathy.  Normally, an Honorable or General Discharge Certificate, as warranted by his military record, was furnished.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 May 1973, the date he was discharged for apathy.  The time for the applicant to file a request for correction of any error or injustice expired on 30 May 1976.

The application is dated 15 March 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

__ro___  ___ea_____  ___mp___ CONCUR WITH DETERMINATION

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

                                                          INDEX

CASE ID	AR2000039704	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000914	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	UP Ch 13 	
2.		
3.		
4.		
5.		
6.