MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 April 2001                  
	DOCKET NUMBER:   AR2000050370

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Celia L. Adolphi		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 honorable discharge be corrected to a medical discharge.  He states that he was suffering from schizophrenia reaction while on active duty which was never diagnosed.  He suggests that it may have originated on a day when he was given inoculations.  After receiving those inoculations he was in formation on a hot day and passed out, hitting his head on concrete.  After that another personality invaded his mind

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:

He enlisted in the Regular Army on 23 August 1977 and was awarded the military occupational specialty of power generation and wheel vehicle mechanic.

Between 20 September 1978 and 21 June 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, three times for being absent from his appointed place of duty (two specifications) and possession of marijuana.  

While in the Central Correctional Facility (CCF) for his third NJP, his assigned Correctional Custody Officer stated that the applicant had not achieved the required CCF standards, he lacked motivation and continuously displayed an attitude problem.  It was recommended that the applicant be eliminated from the Army.

On 5 October 1979 the applicant’s commander notified him of his intent to recommend his separation under the Expeditious Discharge Program (EDP) and of his rights in conjunction with that recommendation.  The applicant waived his rights.

Thereafter the applicant’s commander forwarded a recommendation that he be discharged and that request was approved, resulting in the applicant’s general discharge under honorable conditions on 7 December 1979.

In 1974, the Department of the Army authorized the Commander in Chief, United States Army Europe to test a new discharge program, entitled the Expeditious 

Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated under the EDP.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.  

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  

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 7 December 1979, the date he was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 7 December 1982.

The application is dated 20 November 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  ____  ___hbo _  ___cla___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050370	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.