MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  5 October 2000
	DOCKET NUMBER:  AR2000043036

	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. Shirley Powell		Chairperson	
	Mr. Jamie Perez		Member	
	Mr. Elzey J. Arledge		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 records be corrected to show he was honorably discharged in order to be eligible for Department of Veterans Affairs (VA) benefits.  He indicates he served in Vietnam. 

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 1970, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to the rank of private, E-2 on 2 June 1970.

During the period 25 June 1970 to 19 April 1971 (less 12 days of absent without leave (AWOL) time), he served in a unit in Vietnam.

On 27 June 1970, he was advanced to private first class, E-3.

On 10 December 1970, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period       20 September to 2 October 1970.  His punishment included a reduction to private, E-2 (suspended) and a forfeiture of $34 pay.

On 1 March 1971, he was advanced to specialist four, E-4.

On 19 April 1971, he was medically evacuated from Vietnam to Ireland Army Hospital at Fort Knox, Kentucky.

On 6 May 1971, he accepted NJP under Article 15, UCMJ for being AWOL for the period 30 April to 3 May 1971.  His punishment was a forfeiture of $30 pay.

Records show multiple periods of AWOL and confinement from 9 June to          23 October 1971.

On 24 October 1971, records show he was placed in pre-trial confinement.

On 1 November 1971, a physical examination cleared the applicant for discharge.

After court-martial charges were preferred and his rights explained by his unit commander and after consulting with legal counsel, he requested that the court be composed of the military judge alone.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 23 December 1971, under Army Regulation 635-200, for the good of the service, and was issued an UOTHC discharge with an Undesirable Discharge Certificate.  He had 1 year, 4 months and 15 days of creditable service and 190 days of lost time.

In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

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.

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 23 December 1971, the date he was discharged under conditions other than honorable.  The time for the applicant to file a request for correction of any error or injustice expired on 23 December 1974.

The application is dated 29 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

___sp___  __jp____  __ea____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000063036	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
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         1.136	Benefits	
2.		
3.		
4.		
5.		
6.