MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  19 December 2000
	DOCKET NUMBER:  AR2000045289

	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:

	Mr. James P. Huber		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Raymond J. Wagner		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 records be corrected to show he was honorably discharged.  He indicates he filed a claim in 1978 and he should have been reviewed for upgrade.  He indicates he was placed under duress when his first sergeant told him to either sign for the early release or go to jail.  Further, he indicates he injured his back while on active duty and now needs vocational rehabilitation, and he believes the failure to timely file should be waived on that basis.

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 20 May 1977, he enlisted in the Army Reserve Delayed Enlistment Program.

On 13 June 1978, he enlisted in the Army for 4 years with a $2,500 enlistment bonus and assignment to Germany.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

During the period 4 November 1977 to 21 March 1978, he served in a unit in Germany.

On 13 December 1977, he was advanced to pay grade E-2.

In an undated memorandum, the unit commander notified the applicant that he was initiating action to discharge him from the Army under Army Regulation 635-200, chapter 5, Expeditious Discharge Program (EDP), based on his poor attitude, lack of motivation, inability to adapt emotionally and failure to demonstrate promotion potential.  He also indicated the applicant had accepted nonjudicial punishment and had received formal counsellings on 10 occasions.  He notified the applicant of his rights.  

In an undated memorandum, the applicant acknowledged receipt of the commander’s notification and elected not to submit statements in his own behalf. He indicated he understood the effects of receiving a General Discharge (GD) (under honorable conditions).  Further, he indicated he had been given the opportunity to consult with legal counsel.

On 1 March 1978, the appropriate separation authority approved his discharge and directed he receive a GD.

On 22 March 1978, he was discharged with a GD under the above-cited regulation.  His separation document indicates he had 9 months and 10 days of creditable service.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. 

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 22 March 1978, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 22 March 1981.

The application is dated 1 August 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

___jh___  ___kw___  ___rw_____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045289	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001219	
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         1.110	UP GD	
2.		
3.		
4.		
5.		
6.