MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  12 September 2000
	DOCKET NUMBER:  AR2000042230

	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. Calvin M. Fowler		Chairperson	
	Ms. Carol J. Suiter		Member	
	Mr. Fred N. Eichorn		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 honorably discharged, effective 9 November 1956.  He indicates that he believes the circumstances surrounding his discharge did not warrant an undesirable discharge, especially when his years of honorable service were considered.  Further, he indicates he is a long-time member and trustee of a church and provides an exert from Army Discharge Review Board (ADRB) Proceedings. Counsel, the American Legion, indicates the applicant’s over-all service is more deserving of an honorable discharge and that the applicant’s use of alcohol diminished his ability to serve.

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 16 February 1946 to 28 December 1955, the applicant served on active duty (9 years, 9 months and 24 days and 19 days of lost time).  Records show that on 21 May 1954, he was convicted by a Summary Court-Martial (SCM) for being absent without leave (AWOL) for the period 7 to 14 April 1954.  His sentence included a reduction to private first class.  On 21 July 1954, he was convicted by a SCM of being AWOL for the period 7 to 11 July 1954.  His sentence included a reduction to private first class and a forfeiture of $48.

On 29 December 1955, he reenlisted in the Army for 6 years, in pay grade E-4 and in military occupational specialty 741 (Cook).  He was promoted to Specialist 2 (pay grade E-5), in February 1956.

On 13 June 1956, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for his failure to repair on 23 May and 4 June 1956.  His punishment was a reduction to Specialist 3 (pay grade E-4) without prejudice.

On 7 September 1956, he was convicted by a Special Court-Martial of driving while drunk and causing an accident in which a German National was killed on 11 July 1956.  His sentence included confinement at hard labor (CHL) for 6 months, forfeiture of $75 pay per month for 6 months and reduction to pay grade E-1.

On 24 August 1957, he was convicted by a Special Court-Martial of wrongfully appropriating a privately owned vehicle and driving without a valid driver license on 23 June 1957.  His sentence included CHL for 6 months, a forfeiture of $60 pay for 6 months and a reduction to pay grade E-1.
On 5 September 1957, a mental status evaluation indicated the applicant was free of any mental disease.

On 25 September 1957, the unit commander recommended that the applicant be considered by a board of officers for elimination under the provisions of Army Regulation 635-208 for misconduct – incidents of a discreditable nature.  The request was based on prior courts-martial and nonjudicial punishment.

On 26 September 1957, the unit commander notified the applicant of his request to effect his elimination and of his rights.

On 2 October 1957, a board of officers found the applicant gave evidence of being undesirable and recommended his discharge based on undesirable habits or traits of character and that he be issued an undesirable discharge (UD).

On 5 October 1957, the general court-martial convening authority approved the board’s finding and recommendation.

On 9 November 1957, he was discharged, in pay grade E-1, with a UD, under Army Regulation 635-208 for misconduct – incidents of a discreditable nature.  His records indicate he had 10 years, 8 months and 5 days of creditable service and 155 days of lost time. 

On 21 April 1981, the ADRB found his discharge to be proper and equitable and denied his request for an upgrade.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for misconduct.  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.  When separation for misconduct was warranted, an Undesirable Discharge Certificate was normally issued.

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.  The U.S. Court of Appeals, observing that applicants to the 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 years 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 21 April 1981, the date the ADRB denied his request for upgrade. The time for the applicant to file a request for correction of any error or injustice expired on 21 April 1984.

The application is dated 5 May 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

__cf___  __cs___  ___fe_____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042230	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000912	
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	UD to HD	
2.		
3.		
4.		
5.		
6.