MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  9 January 2001
	DOCKET NUMBER:  AR2000048273

	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. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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, in effect, his general discharge be upgraded to fully honorable.  He indicates he was unjustly classified as having a mental disorder, which he did not have upon entry.  His problem was that he did not understand the technical language drills, which led to an accident, which led to depressions.  He further indicates that because he was naïve about his discharge and did not understand the consequences, he was not hired for jobs.

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 23 November 1962, he enlisted in the Puerto Rico Army National Guard (PRARNG) for 3 years with a mandatory 6 months active duty for training (ADT) period.

On 8 January 1963, he entered his ADT period at Fort Buchanan, PR.

On 9 January 1963, a physical examination found him acceptable for service with a physical profile of 111111A.

On 13 March 1963, while still assigned to fort Buchanan, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for missing movement through neglect on 11 March 1963.  His punishment was a $39 forfeiture of pay.

On 23 March 1963, he was advanced to pay grade E-2.

On 3 April 1963, at Fort Jackson, South Carolina, he accepted NJP under Article 15, UCMJ for being disrespectful to his superior commissioned officer by throwing his rifle on the ground and telling the officer he didn’t care what he did to him.  His punishment was a reduction to pay grade E-1 and a forfeiture of $20 pay.

On 8 April 1963, a neuropsychiatric service certified the applicant had no physical or mental defects sufficient to warrant separation from the service for disability.  He was diagnosed with a character or behavior disorder classified as passive-aggressive reaction, chronic, severe.  Line of duty – no, existed prior to service.

On 16 April 1963, he accepted NJP under Article 15, UCMJ for his failure to go to his appointed place of duty on 3 and 4 April 1963.  His punishment was a forfeiture of $18 pay.

On 19 April 1963, in a witnessed statement of waiver, the applicant indicated he understood his rights and waived them.  Further, he indicated he understood that if an undesirable discharge was issued to him, that such discharge would be under conditions other than honorable.

On 20 April 1963, the unit commander recommended the applicant’s separation under Army Regulation 635-208, for unfitness based on his unacceptable service to this point.

On 30 April 1963, the appropriate separation authority approved the separation request and directed his return to the PRARNG as untrainable.

On 10 May 1963, he was separated from active duty and returned to the PRARNG under Army Regulation 635-208 for unfitness.  His separation document indicates he had 4 months and 5 days of creditable service and           1 month and 15 days of PRARNG time.

On 20 September 1963, he was discharged from the PRARNG for unfitness.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Action to separate an individual was o be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, an Undesirable Discharge Certificate was normally issued.

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.

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 20 September 1963, the date he was separated from the service under honorable conditions.  The time for the applicant to file a request for correction of any error or injustice expired on 20 September 1966.

The application is dated 25 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

__mm___  __ea___  ___cg__ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000048273	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010109	
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 to HD	
2.		
3.		
4.		
5.		
6.