MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  11 July 2000
	DOCKET NUMBER:  AR2000039970

	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 J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John Saputo		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.  He states that this is not a mistake on behalf of the Army, it is his fault that this happened.  He indicates he can’t afford a lawyer or travel expense.  It has now been 30 years since his discharge and he has a clean record.

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 8 April 1960 to 9 April 1962 (2 years and 2 days), he served on active duty in the Army.

On 10 April 1962, he reenlisted in the Army for 6 years, in Military Occupational Specialty 11B (Light Weapons Infantryman). 

During the period 20 September 1963 to 28 November 1964, he accepted nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL), breaking restriction, his failure to go to his appointed place of duty on 2 separate occasions and for disobeying a lawful order.  His punishments included restriction, reduction in pay grade, forfeiture of pay and extra duty.

During the period 6 February 1964 to 25 January 1965, he was convicted by a special court-martial on two occasions for disobeying a lawful order; being disrespectful to a superior noncommissioned officer on 22 January 1964; AWOL from 13 December 1964 to 7 January 1965; disobeying a lawful command on   12 December 1964; and for breaking restriction on 12 January 1965.  His sentences included reductions in pay grade; confinement at hard labor, and forfeitures of pay.

On 9 January 1965, the commander recommended that he be separated under Army Regulation 635-208, for unfitness based on his frequent incidents of a discreditable nature with authorities, and issued an Undesirable Discharge Certificate.

On 2 February 1965, the applicant acknowledged the commander’s recommendation, that counsel had been made available, that he waived consideration of and appearance before a board of officers, that he declined to make a statement in his own behalf, and that he did not desire legal counsel. 

On 11 February 1965, a physical examination cleared the applicant for separation.

On 15 March 1965, the appropriate separation authority approved his separation and directed that he receive a discharge under other than honorable conditions.

On 2 April 1965, the applicant was discharged, in pay grade E-1, under Army Regulation 635-208, for unfitness based on his frequent incidents of a discreditable nature with authorities.  His Report of Separation indicates he had  4 years, 7 months and 7 days of creditable service.

There is no record of application to the Army Discharge Review Board for a discharge upgrade, within the 15-year statue of limitations.

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.

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.  Then separation for unfitness was warranted, an UOTHC discharge was normally issued.   

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 April 1965, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 2 April 1968.

The application is dated 20 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

___rw___  ___ra___  ___js___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR200039970	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
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	UP character of separation	
2.		
3.		
4.		
5.		
6.