MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001
	DOCKET NUMBER:   AR2000050375

	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. W. W. Osborn, Jr.		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 be upgraded to honorable.  He states, in effect, that he was a perfect soldier until his mother died.  He was on emergency leave because of her illness and when she died he had no leave left.  Therefore, he was absent without leave (AWOL) to attend her funeral.  His 3-year enlistment was almost over and he would have received an honorable discharge.  He was told that his undesirable discharge could be honorable after 6 months.  The applicant did not indicate a date of discovery as requested in block 11a of the DD Form 149 (Application for Correction of Military Record).  He wrote “See attached paper” to explain why it would be in the interest of justice to consider his request.  However, the attached document offers no further information or argument relative to waiving the failure to timely file. 

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 were damaged in the National Personnel Records Center fire of 1973.  However they are intact and apparently complete.

The applicant, at the age of 18 years and 3 months and with 8 years of education, enlisted for 3 years.  He completed training, was advanced to pay grade E-2 and was assigned briefly to Fort Sill, Oklahoma.  From May 1954 to November 1955 he was stationed in Korea as a light truck driver.  While in Korea he was AWOL for 1 day in December 1953 and 2 days in May 1954 and was convicted by a special court-martial of reckless driving.  

In November 1955 he was stationed at Fort Benning, Georgia.  He was AWOL on 7 May 1956 and then from 10 May to 19 June 1956.  A 27 June 1956 neuropsychiatric evaluation found no evidence of any mental disease or disorder. On 26 June 1956 the applicant was convicted of the AWOL by a special court-martial and sentenced to reduction to pay grade E-1, forfeiture of $60 per month for 3 months and confinement for 3 months.  He was then AWOL from 13 October to 17 November 1956 and was convicted by a third special court-martial.

A 28 November 1956 mental status evaluation found the applicant essentially normal both mentally and physically.  He was not psychotic, had no disqualifying mental or physical defects warranting discharge for physical disability.  He could tell right from wrong and adhere to the right.

On 6 December 1956 the applicant appeared with counsel before a board of officers to determine whether or not he should be discharged prior to the expiration of his term of service.  The applicant voluntarily waived the three-day waiting period and elected to remain silent.  The board considered the applicant’s record and the evidence presented by his chain of command and concluded that the case evidenced unfitness that rendered his retention in the service undesirable.  The board recommended that the applicant be separated under the provisions of Army Regulation 635-208 as a habitual shirker.  The separation authority approved the board’s recommendation and directed the issuance of an Undesirable Discharge Certificate.  

The applicant was separated on 19 December 1956.  In 4 years, 2 months and 
2 days of service he had 2 years and 10 months and 11 days of creditable service and 163 days lost time due to AWOL and confinement.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation precluded the setting of arbitrary standards, such as a certain number of trials by courts-martial, as a prerequisite to administrative elimination.  If examination by a medical officer or psychiatrist indicated the existence of a mental or physical disability was the cause of unfitness, a board of medical officers was to be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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 19 December 1956, the date of the discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 19 December 1959.

The application is dated 7 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

__KAH__  ___LE___  __JH____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050375	
SUFFIX		
RECON	 	
DATE BOARDED	20010125 	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19561219	
DISCHARGE AUTHORITY	AR 635-208 	
DISCHARGE REASON	Habitual Shirker	
BOARD DECISION	DENY 	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.