MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            31 August 2000                  
	DOCKET NUMBER:   AR2000040439

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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 general discharge be upgraded to honorable.  He makes no statements and submits no evidence in support of his request.

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:

The applicant initially enlisted in the U.S. Army Reserve (USAR) on 18 June 1982 and was discharged with an entry-level separation on 30 March 1983 after failing to attend scheduled drills.  On 21 May 1984 he enlisted in the Regular Army for a period of three years.  His enlistment documents make no reference to his previous USAR service.

The applicant successfully complete basic and advanced individual training as a cook and in October 1984 was assigned to Fort Knox, Kentucky.  He was punished on two separate occasions under Article 15 of the Uniform Code of Military Justice (UCMJ), once for failing to obey a lawful order and once for failing to be at his appointed place of duty.

On 28 August 1985 the applicant's unit commander initiated action to administratively eliminate the applicant from active duty under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  His commander noted that in addition to the two UCMJ actions the applicant had "been verbally counseled on numerous occasions…and will not be able to advance or perform in any military environment."  The applicant was serving in pay grade E-2 at the time.

The applicant acknowledged receipt of the proposed separation, consulted with counsel and waived his attendant rights.

The recommendation was approved and on 12 September 1985, the applicant was discharged under honorable conditions.

Army Regulation 635-200, chapter 13, provides for the separation of soldiers for unsatisfactory performance when, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training or it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.
Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.

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 12 September 1985, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 12 September 1988.

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

__sac___  __bje___  ___jrs__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040439	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000831	
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.	142.00	
2.		
3.		
4.		
5.		
6.