MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  12 December 2000
	DOCKET NUMBER:  AR2000046745

	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. Fred N. Eichorn		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Lana E. McGlynn		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 his discharge was based on a physical disability.  He indicates he had MS (Multiple Sclerosis) while in service, but was not correctly diagnosed.  Due to his medical condition, he was unable to perform his duties and after constant confrontations he went AWOL (absent without leave).  He provides a copy of a California Department of Rehabilitation Form (Consent to Release Medical Information), dated 28 May 1996, a Kern Medical Center Procedure Note which indicates he had a 2 month history of gradual onset of gait problem and a lumbar puncture and a laboratory sheet, dated 20 July 1989.

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 13 March 1968, the applicant enlisted in the Army for 3 years.

On 11 July 1968, he was convicted by a Summary Court-Martial of being AWOL for the period 11 to 27 June 1968.  His sentence included confinement at hard labor (CHL) for a month and forfeiture of $63 pay for a month.

During the period 11 to 26 July 1968, he was AWOL.  There is nothing in the available records to indicate what action, if any, was taken.

On 29 October 1968, he was convicted by a Special Court-Martial (SPCM) of being AWOL for the period 6 August to 10 October 1968.  His sentence included CHL for 6 months and forfeiture of $68 pay for 6 months.

On 16 May 1969, he was convicted by a SPCM of being AWOL for the period   17 February to 2 May 1969.  His sentence included CHL for 6 months (suspended) and a forfeiture of $68 pay for 6 months.  On 2 June 1969, the suspension of CHL was revoked.

On 27 June 1969, at Fort Riley, Kansas, he complained of having arthritis.  The medical impression was arthritis and he was treated accordingly. 

On 3 July 1969, a Mental Hygiene Consultation Service diagnosis indicated the applicant had an immature personality, chronic, moderate, manifested by poor judgment, resentment of authority, impulsive, maladaptive behavior and malingering tactics.  His line of duty status was no, existed prior to service.  The consultation recommended separation under Army Regulation 635-212.

On 15 July 1969, a physical examination cleared him for separation.

On 1 August 1969, he was discharged, with an undesirable discharge, under Army Regulation 635-212, for unfitness, based on his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He failed to complete any of his required training.  His separation document indicates he had 4 months and 8 days of creditable service and 371 days of lost time.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel from active duty for unfitness and unsuitability. That regulation provided, in pertinent part, that commanders would separate a member for unfitness when one of the following conditions existed: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming drugs or marijuana; an established pattern for shirking; established pattern showing dishonorable failure to pay just debts; or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 

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, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 

In the absence of evidence to the contrary, a presumption of regularity implies that the records of the individual concerned are correct.

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 1 August 1969, the date he was discharged for unfitness.  The time for the applicant to file a request for correction of any error or injustice expired on 1 August 1972.

The application is dated 14 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

__fe____  ___ho_____  __lm_____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045745	
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	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	UD to PD	
2.		
3.		
4.		
5.		
6.