MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  14 December 2000
	DOCKET NUMBER:  AR2000047996

	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. June Hajjar		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Hubert O. Fry		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 indicates he wanted to go to Vietnam, but he was denied, and he was young and stupid.  He indicates he is a good American and would fight and die, if need be.

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 3 July 1968, the applicant enlisted in the Army for 3 years and training in military occupational specialty (MOS) 62B (Engineer Equipment and Maintenance).  He did not complete his requested training; however, he later completed training and was awarded MOS 94B (Cook).  He was advanced to pay grade E-2, effective 3 November 1968.

During the period 6 to 15 January 1969, the applicant was absent without leave (AWOL); however, there is no indication of action taken in this case in the available records.

On 6 May 1969, he was convicted by a Summary Court-Martial for being AWOL for the period 10 February to 17 March 1969.  His sentence was hard labor without confinement for 10 days, restriction and a forfeiture of pay.

On 25 September 1969, he was convicted by a Special Court-Martial for being AWOL for the period 26 July to 18 August 1969.  His sentence included a reduction to pay grade E-1, hard labor without confinement for 2 months and a forfeiture of pay of $60 for 2 months.

During the period 15 to 22 July 1969, 3 November 1969 to 3 March 1970 and   23 March to 31 May 1970, the applicant was AWOL; however, there is no indication of action taken in this case in the available records.

On 4 June 1970, a psychiatric evaluation cleared him for separation.  The evaluation indicates “The patient ‘can’t take the service.’  He refuses to adjust to it and can not be motivated.”

On 11 June 1970, after consulting with legal counsel, the applicant acknowledged the commander’s contemplated action to accomplish his separation.  He waived consideration of and personal appearance before a board of officers, and representation by legal counsel.  He elected not to submit statements in his own behalf.  He acknowledged that he understood that, as the result of issuance of a UD, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

The commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-212 with a UD. 

On 26 June 1970, the appropriate separation authority approved the request and directed issuance of a UD for unfitness.

On 1 July 1970, he was discharged with a UD under the above-cited regulation.  His separation document indicates he had 1 year, 2 months and 29 days of creditable service and 270 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; an 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. 

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 July 1970, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 1 July 1973.

The application is dated 15 September 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____  __rd_  ___hf_____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000047996	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001214	
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 UD to GD	
2.		
3.		
4.		
5.		
6.