MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 September 2000                             
	DOCKET NUMBER:   AR2000045001

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman, Jr.		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 (UD) be upgraded to a general discharge.  He states, in effect that he has been punished long enough.  In 1955 when he was in the Army he was young and silly.  He had personality conflicts with his commander and because he did not get along with his commander he was given the maximum penalty for his actions.  The applicant further states, that at the time he did not care nor did he try to get his discharge upgraded.  However, when he did try to get his discharge upgraded in 1982, the Army Discharge Review Board (ADRB) denied his request.  He gave up then, but he is not giving up now.  He was a good soldier from 1950 to 1955.  He is a good citizen now and thinks he should be able to have his discharge upgraded based on his present status.  

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 10 December 1951, the applicant reenlisted in the Army for a period of 
6 years, with 1 year and 24 days of prior active service.  At the time of his reenlistment, the applicant was 24 years old. 

Between December 1952 and July 1954, the applicant’s military record indicated that he was convicted by one summary court-martial and two special courts-martial of being drunk and disorderly, of being disorderly in uniform in a private resident and willfully disobeying a lawful order.  His sentences included confinements, forfeitures, restrictions and a reduction to pay grade E-1. 

On 19 February 1955, the applicant was found mentally and physically fit for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

On 25 February 1955, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 615-368, for unfitness, and that he would be required to appear before a board of officers for the purpose of determining whether the applicant should be discharged before the expiration of his term of service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  

On 28 March 1955, the applicant appeared before a board of officers.  The board of officers found the applicant undesirable for further retention and recommended that he be discharged because of unfitness with a UD. 

On 2 April 1955, the appropriate authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  On 13 May 1955, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 615-368, for unfitness with a UD.  He had completed 3 years, 
3 months and 11 days of creditable active service during this period of service.  

Army Regulation 615-368, in effect at the time set forth the policy and procedures for separation of enlisted personnel.  Unfitness included, in pertinent part, habits and traits of character manifested by antisocial or amoral trends.  When discharged because of unfitness, a UD was issued.  (Board proceedings are required).

There is no evidence in the applicant’s record to substantiate his allegation that he was given the maximum penalty because of personality conflicts with his commander.   

On 22 February 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of 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 on 22 February 1982, the date the ADRB denied the applicant’s request for an upgrade of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 
22 February 1985.

The application is dated 1 July 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

__rvo___  __emw___  __dph___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045001	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19550513	
DISCHARGE AUTHORITY	AR615-368 . . . . .  	
DISCHARGE REASON	A50.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.