MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 February 2001                  
	DOCKET NUMBER:   AR2000042346

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz 		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 discharge under conditions other than honorable be upgraded to honorable.

The applicant states that he was not AWOL 552 days, but only 52 days, at which time he was in a mental hospital in Ohio for 15-25 days.  They sent him back to jail where the military police picked him up.  He states that he received an honorable discharge on 11 February 1971, reenlisted, and had post traumatic stress disorder (PTSD).  

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 enlisted in the Army for three years on 28 April 1969, completed training, and in October 1969 was assigned to an engineer battalion in Vietnam as a crane shovel operator.  The applicant was promoted to pay grade E-4 in December 1969 and was awarded the Army Commendation Medal with first oak leaf cluster for his achievement and service during his Vietnam tour.  He completed his tour in Vietnam and in November 1970 was assigned to an engineer battalion in Germany.  

The applicant was discharged on 11 February 1971, reenlisting for three years for assignment to Vietnam.  In April 1971 he was assigned to an engineer company in Vietnam.  He completed his tour, returning to the United States where he was assigned to Fort Bragg, North Carolina in April 1972.  The applicant was AWOL from 19 May 1972 until his return to military control on      20 October 1972.  A 17 October 1972 order published at Fort Knox, Kentucky, shows that the applicant was then confined at the Lawrence County Jail in Ironton, Ohio.  That order assigned the applicant to the Special Processing Company at Fort Knox effective on 7 September 1972.

A 13 November 1972 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that the applicant furnished for the examination, the applicant did not indicate that he had any medical problems.

The applicant was discharged on 27 November 1972 under conditions other than honorable for the good of the service.  His DD Form 214 shows that he had         3 months and 13 days of net service during his latest period of enlistment, and 552 days of lost time, from 17 April 1971 to 19 October 1972.  His temporary       

DA Form 20 (Enlisted Qualification Record) also shows this same period of lost time.  A Fort Dix, New Jersey message dated in November 1971 shows that the applicant had not reported to the overseas replacement station at Fort Dix and was absent since 17 April 1971.  The apparent confusion concerning his AWOL period may well have stemmed from that message.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 2 December 1971 shows that the applicant was AWOL since 17 April 1971 and had been dropped from the rolls on             16 May 1971.  However, Part II of that from indicates that the dropped from the rolls entry was erroneous and that the applicant was presently on duty.  The Army Review Boards Agency at St. Louis will be requested to correct the erroneous AWOL information.

There are no documents in the applicant’s records concerning his administrative separation processing, other than his medical records. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40 provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 27 November 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 November 1975.

The application is dated 10 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.

NOTE:  The ARBA Review Boards Agency at St. Louis is requested to correct the applicant’s DD Form 214 to show that he was AWOL only from 19 May 1972 through 19 October 1972, and to correct his net service and total service on his DD Form 214 accordingly.  It is also requested to correct other documents in his records, e.g., his DA Form 20, to reflect the true period of his AWOL.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___lls___  ___bjl___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042346	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201YYYYMMDD	
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.  189	142.00	
2.	110.00	
3.		
4.		
5.		
6.