MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  29 June 2000
	DOCKET NUMBER:  AR2000042245

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John M. Slone		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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 April 1969, be corrected to show that he was honorably discharged.

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 custodian of the applicant's military records has been unable to locate them.  Information herein was obtained from alternate sources.

On 3 July 1967, he enlisted in the Army for 3 years.

On 21 September 1967, he accepted nonjudicial punishment under Article 15, Uniform Code for Military Justice for sleeping on guard duty on 20 September 1967, while serving in Vietnam.  His punishment included restriction, extra duty and a forfeiture of pay.

On 12 June 1968, he was convicted by a special court-martial for being absent without leave during the period 17 March to 22 April 1968.  His sentence included a reduction, forfeiture, and confinement at hard labor (suspended).

On 2 March 1969, he was convicted by a special court-martial for using disrespectful language towards a superior commissioned officer on                    28 January1969; for assault on a superior commissioned officer on 30 January 1969; for disobeying a lawful order; for being drunk and disorderly in public on   30 January 1969; and for resisting lawful apprehension by a superior commissioned officer on 30 January 1969. 

On 23 February 1969, the unit commander advised the applicant that he had initiated action to effect his separation from active duty under Army Regulation 635-212, based on his unfitness.  He was advised of his rights.

On 8 March 1969, a mental hygiene consultation service diagnosis indicated he had a Passive-Aggressive Personality, aggressive type and recommended he be eliminated under Army Regulation 635-212.

On 15 March 1969, the applicant, with legal counsel, waived consideration by and personal appearance before a board of officers.  He elected not to submit statements in his own behalf and waived legal representation.

On 26 March 1969, the appropriate separation authority approved the request and directed he be reduced to the lowest pay grade and discharged, with an Undesirable Discharge Certificate (UDC).

On 1 April 1969, he was discharged, with an UDC, in pay grade E-1, under the above-cited regulation.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel from active duty. That regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with military authorities were subject to separation for unfitness. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

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.  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 1 April 1969, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 1 April 1972.

The application is dated 9 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

__jl___  __mm____  ___js___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042445	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000629	
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	Upgrade to honorable	
2.		
3.		
4.		
5.		
6.