MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 December 2000                  
	DOCKET NUMBER:   AR2000045704

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Harry B. Oberg		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 other than honorable conditions be upgraded to honorable.

He states that his two tours in Vietnam were honorable, he was promoted, and he had few problems there.  However, he was too young and inexperienced to cope with duty in the United States.  He believes that he had post traumatic stress disorder (PTSD).  Had he received help he would not have gone AWOL.  At the time of his court-martial his attorney informed him that if he fought the discharge given him, he would probably receive a dishonorable discharge and serve time in Leavenworth.  

The applicant submits a copy of a summary from a social worker.  That person outlined the applicant’s service in Vietnam, stating that he came under fire, and witnessed the death of friends.  He stated that the applicant could not adjust to duty in the United States.  Upon his return from Vietnam he quit the service and returned to Fort Worth.  No one looked for him; however, after seven years he felt guilty, and needed to straighten out his life.  The social worker stated that the applicant’s two children were killed in an accident in 1994, and his wife died less than a year later.  The applicant began drifting and riding the rails.  He had a drinking and drug problem since 1969, and had hundreds of jobs.  He had difficulty sleeping because of his Vietnam memories.  He felt comfortable only with people in the VA.  The past few months the applicant had undergone changes in his life.  He felt that his military discharge was a major obstacle [in his effort to change his life].  The social worker continued by saying that the applicant did not try to avoid service in Vietnam, in fact, volunteered.  He was proud of his service there.  He did not try to leave the country. 

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 23 January 1968, completed basic training and was assigned to Fort Bliss, Texas for advanced training.  The applicant had periods of being AWOL, beginning on                       24 July 1968, and on 19 November 1968 before a special court-martial which convened at Fort Hood, Texas, the applicant was arraigned and tried for being AWOL on 24 July 1968; 10 August to 16 September 1968; 4 October 1968; and 17 October to 31 October 1968.  He pled guilty and was sentenced to be confined at hard labor for two months and to forfeit $70.00 per month for two months.  The sentence was approved but the execution of that portion adjudging confinement was suspended for two months.
In January 1969 the applicant was assigned to a transportation company in Vietnam as a cargo handler, and then as a truck driver.  On 25 October 1969 he received nonjudicial punishment under Article 15, UCMJ, for missing bed check and for wrongfully appropriating an Army truck.  He was promoted to pay grade E-5 on 15 February 1970.  On 30 April 1970 the applicant received nonjudicial punishment for failing to go to his place of duty.  In September 1970 he was assigned to Fort Knox, Kentucky.  The applicant was AWOL from 10 January to 13 January 1971.  He was AWOL again from 23 January to 2 March 1971, from  4 March to 20 July 1971, and from 16 August 1971 to 12 June 1979.  He turned himself in to civilian authorities at Jeffersonville, Indiana on 13 June 1979.  He was AWOL from 30 June to 24 July 1979.  He turned himself into military authorities at Fort Hood, Texas on 25 July 1979.  On 30 July 1979 he received nonjudicial punishment for the latter period of AWOL.  

A 26 June 1979 report of medical examination shows that the applicant was physically qualified for separation with a physical profile serial of 1 1 1 1 2 1.  In the report of medical history he furnished for the examination, the applicant stated that his health was good.

The applicant’s separation proceedings are not available.  His DD Form 214 shows that he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-33b(1), on 22 August 1979 at Fort Knox, Kentucky.  He had 3 years and 14 days of service and over 3000 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable discharge is normally appropriate for a member who is discharged for acts or patterns of misconduct.

The applicant applied to the Army Discharge Review Board for upgrade of his discharge on 10 April 1998 well beyond its 15-year statute of limitations.  He was so informed on 30 June of that year.

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 August 1979, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 August 1982.

The application is dated 25 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

___hbo___  ___fne__  ___lem__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045704	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001212	
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.  360	142.00	
2.	110.00	
3.		
4.		
5.		
6.