MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            28 September 2000 
	DOCKET NUMBER:   AR2000043094

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Conner		Chairperson	
	Mr. Ernest W. Willcher		Member	
	Mr. Donald P. Hupman		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 undesirable discharge be upgraded to an honorable or general discharge.  He states that he was offered an "out" and that he was not provided counsel or rehabilitation.  He notes that he simply took the "out."  In support of his request he submits three letters of support, one from his spouse and two from individuals who indicate they were assigned to Vietnam with the applicant.

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 and entered active duty on 29 January 1970.  Following successful completion of basic and advanced individual training he was assigned to Vietnam as an airframe repairman in August 1970.  He remained in Vietnam until August 1971 when he was reassigned to Fort Hood, Texas.  In March 1972 he returned to Vietnam for a second tour of duty.

On 14 July 1972 his unit commander notified the applicant that he was initiating action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-212 for unfitness.  The commander cited the applicant's frequent incidents of a discreditable nature and possession of heroin as the basis for his action.  The applicant's records also indicate he had been punished on at least five separate occasions under the provisions of Article 15 of the Uniform Code of Military Justice.  His commander also indicated that the applicant had several rehabilitative moves within the unit, at the applicant's request, but the moves "have been to no avail and further rehabilitative efforts would be useless."

The applicant acknowledged receipt of the proposed separation, consulted with legal counsel and waived his attendant rights, including his right to appear before a board of officers.

The recommendation was approved and on 19 October 1972 the applicant was separated with an undesirable discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

In September 1979 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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 Discharge Review Board (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 year time limit 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 in September 1979, the month in which the Army Discharge Review Board completed its actions.  The time for the applicant to file a request for correction of any error or injustice expired in September 1982.

The application is dated 25 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

__eww___  __dph___  ___rvo__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043094	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000928	
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.	142.00	
2.		
3.		
4.		
5.		
6.