MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  31 August 2000
	DOCKET NUMBER:  AR2000040458

	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. Samuel A. Crumpler		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Ms. Barbara J. Ellis		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 that he was discharged under honorable conditions.  He asked for conscientious objector status, but it was disapproved.  He further indicates he disobeyed a direct order and was sentenced to two years in prison.  He alludes that this was his only act of disobedience during his period of active duty.  He is now a Jehovah’s Witness.

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 2 February 1968, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 62M (Rough Terrain Forklift and Loader Operator).  He was advanced to private, pay grade E-2, effective 2 June 1968.

During the period 4 October to 4 December 1968, he accepted nonjudicial punishment on five occasions, for disobeying a lawful order on two occasions, for making a false official statement, for an unauthorized absence from his place of duty, and for throwing a beverage container from a moving vehicle.  His punishments included restriction, extra duty, and forfeitures.

On 27 May 1969, he was convicted by a General Court-Martial of disobeying a lawful command.  He pleaded guilty.  His sentence was a Bad Conduct Discharge (BCD), confinement at hard labor (CHL) for 2 years, total forfeiture of pay and allowances, and reduction to pay grade E-1.  The sentence was approved on 1 October 1969 and his CHL was reduced to 18 months.

On 12 November 1969, General Court-Martial Order Number 1123, U. S. Disciplinary Barracks, Fort Leavenworth affirmed the approved sentence and ordered the sentence executed.

On 25 November 1969, a physical examination cleared him for discharge.

On 5 January 1970, he was discharged and issued a DD Form 259A (Bad Conduct Discharge Certificate) under Army Regulation 635-200, paragraph     11-1b, based on a court-martial sentence.  His separation document indicates he had 1 year, 2 months and 3 days of creditable service and 266 days of lost time.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 provided, in pertinent part, for the separation of personnel with an approved sentence to a BCD, after completion of the appellate review and after the sentence had been affirmed.

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.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

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 5 January 1970, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 5 January 1973.

The application is dated 10 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

___sc___  __js____  ___be_____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040458	
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	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	Upgrade to GD or HD	
2.		
3.		
4.		
5.		
6.