MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  5 December 2000
	DOCKET NUMBER: AR2000046254

	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. Ann M. Campbell		Chairperson	
	Mr. Jose A. Martinez		Member	
	Mr. Allen L. Raub		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 under honorable conditions.  He contends his discharge was inequitable because it was based on two isolated incidents in his 28 months of service with no other adverse action.  Further, he indicates he had no prior knowledge of the dismissal charge and that in his short time in the military he respected his duties and all branches of the service.  He asks that his request be based on his ignorance of his rights and that he had the right to question his dismissal decision.  He never believed his discharge was fair.  He insists his only crime was extending his “flying 10 passes (sic)” a few days longer.

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 21 July 1966, he was inducted into the Army.  He completed his required training and was awarded military occupational specialty 64A (Light Vehicle Driver).

On 14 December 1966, he was convicted by a summary court-martial of being absent without leave (AWOL) for the period 7 November to 6 December 1966.  His sentence was confinement at hard labor (CHL) for 25 days and a forfeiture of $40 pay.

On 24 July 1967, he was convicted by a special court-martial (SPCM) of being AWOL for the period 20 February to 22 May 1967.  His sentence included a reduction to pay grade E-1, CHL for 6 months and forfeiture of $64 pay for          6 months.

On 30 November 1967, he was convicted by a SPCM of being AWOL for the period 11 July to 30 October 1967. His sentence included CHL for 6 months and a forfeiture of $64 pay for 6 months.

On 25 January 1968, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL for the period 27 December 1967 to 22 January 1968.  His punishment was a forfeiture of $51 pay.

On 13 February 1968, a Mental Hygiene Consultation Service Report indicates the applicant wanted “out” and would go AWOL at the first opportunity.  He indicated he was not concerned if he received a dishonorable discharge.  He was diagnosed as having an antisocial personality, chronic, moderate. Line of duty – no, existed prior to service.  He was recommended for discharge under Army Regulation 635-212. 

On 21 February 1968, after consulting with legal counsel, he acknowledged that his unit commander was recommending his discharge under Army Regulation 635-212 for unfitness.  He also acknowledged his rights.  He waived consideration of and personal appearance before a board of officers, elected not to make statements in his own behalf, and waived representation by legal counsel.

On 1 March 1968, the appropriate separation authority approved the commander’s recommendation and directed the applicant be reduced to the lowest pay grade and discharged, under other than honorable conditions (UOTHC) with an Undesirable Discharge (UD) Certificate.

On 11 March 1968, he was discharged UOTHC and issued a UD Certificate.  His records indicate he had 6 months and 18 days of creditable service and 393 days of lost time.

Army Regulation 635-212, in effect at the time set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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.

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 11 March 1968, the date he as discharged from the Army.  The time for the applicant to file a request for correction of any error or injustice expired on 11 March 1971.

The application is dated 11 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

__ac___  ___jm_____  __ar____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000046254	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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         1.108	UP UD to HD	
2.		
3.		
4.		
5.		
6.