MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            26 October 2000                  
	DOCKET NUMBER:   AR2000040275

	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:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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 discharge effective 19 January 1954, be upgraded.  

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 14 April 1951, he reenlisted in the Regular Army for a period of 6 years.

Between August 1952 and August 1953, he was convicted by courts-martial on three occasions for being absent without leave (AWOL); failure to obey a lawful order; and for entering the kitchen of other companies.  His sentences included forfeiture, restriction and hard labor.

On 26 September 1953, his commander recommended that a board of officers be convened to determine if the applicant should remain on active duty.  His commander noted that he was continuously AWOL, disorderly, and shirked his duties whenever possible; and had been given numerous chances to become a satisfactory soldier. 

On 24 November 1953, a board of officers recommended that the applicant be discharged from the service prior to expiration of his term of service, and that he be furnished an undesirable discharge.

On 19 January 1954, the applicant was discharged under the provisions of Army Regulation 615-368.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates he has 2 years, 8 months and 19 days of active service.

On 26 April 1954 the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, criminalism, and habitual shirking.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 26 April 1954, the date the ADRB finalized their action.  The time for the applicant to file a request for correction of any error or injustice expired on 26 April 1958.

The application is dated 3 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

___mmd_  ___aao__  __wdp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040275	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
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.  110.00		
2.		
3.		
4.		
5.		
6.