MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  25 January 2001
	DOCKET NUMBER:  AR2000049416

	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	
	Ms. Karen A. Heinz		Member	
	Mr. Lester Echols		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 states he spent time in the jungle and was forced to spend much time in the hospital suffering from malaria and PTSD (Post-Traumatic Stress Disorder).  He also states he had no guidance to perform well in a garrison environment.  Before his illness he had no disciplinary problems.  Counsel was silent on the issue.

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 30 November 1966, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-3 effective 8 July 1967.

During the period 28 June 1967 to 30 May 1968, he served in a unit in Vietnam.

He was medically evacuated from Vietnam for malaria to Walter Reed General Hospital on 31 May 1968.  He was treated from 1 to 3 June and was released to duty on 4 June 1968.  His hospital course was uneventful and he was not issued a permanent medical profile.

On 16 August 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for his failure to go to his appointed place of duty on 16 August 1968.  His punishment included a forfeiture of pay, restriction and extra duty.

On 11 December 1968, he was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) for the period 6 September to 3 December 1968.  His sentence included confinement at hard labor (CHL) for 4 months (suspended for 6 months) and a forfeiture of $73 pay per month for 4 months.

On 14 January 1969, he was convicted by a SPCM of damaging military property and his failure to follow a general regulation on 12 December 1968.  His sentence included CHL for 6 months (excess of 1 month suspended for               6 months) and forfeiture of $97.00 pay per month for 6 months.

On 11 June 1969, he accepted NJP for being disorderly in public on 6 May 1969. His punishment was restriction.

On 8 July 1969, he accepted NJP for his failure to go to his appointed place of duty on 6 July 1969.  His punishment included a forfeiture of $29 pay, restriction and extra duty.

On 8 October 1969, his commander preferred court-martial charges against him for being AWOL during the periods 7 to 9, 15 to 26 August and 28 August to       4 October 1969.  He was advised of his rights.

He was confined from 4 October to 4 November 1969.

On 8 October 1969, a physical examination cleared the applicant for separation.

On 21 October 1969, after consulting with legal counsel, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated that he was guilty of the charges against him; that he understood, if his request was accepted, he might be discharged under other than honorable conditions (UOHC); that he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he might expect to encounter substantial prejudice in civilian life because of an UOHC discharge.

On 21 October 1969, the appropriate separation authority approved his request for discharge, directed that he receive a UOHC discharge and that he be reduced to pay grade E-1.

On 5 November 1969, the applicant was discharged UOHC with an Undesirable Discharge Certificate, in pay grade E-1, under Army Regulation 635-200, chapter 10.  His separation document indicates he had 2 years and 2 months of creditable service and 344 days of lost time.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10, of that regulation, provided, in pertinent part, that a member who had committed an offense of offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOHC discharge with the issuance of an Undesirable Discharge Certificate.

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 5 November 1969, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 5 November 1972.

The application was received on 26 October 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___  __kh____  __le______  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049416	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
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	Ch 10	
2.		
3.		
4.		
5.		
6.