MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            14 August 2001
	DOCKET NUMBER:   AR2000051098

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 an honorable discharge.  In essence, that he did not know why he was given this type of discharge and claims that he was told it would be a general discharge.  The applicant dates the discovery of the alleged error or injustice as October 1967, and states he did not know he had this type of discharge until he tried to seek medical attention at the Veteran Medical Center.  He provides a copy of DD Form 214 (Armed Forces of The United States Report of Transfer or Discharge) dated 
4 October 1967.

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 was inducted into the Army of the United States at the age of 22 with a
12th grade education on 27 October 1966.  On 21 January 1967, the applicant completed all of his required military training and was awarded military occupational specialty (MOS) 34G20 as a Fire Control Repairman.  He was then assigned to duty in his MOS at Fort Hood.

On 19 May 1967, he was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) for two periods beginning from 
3 - 13 April 1967 and from 24 April to 4 May 1967.  His sentence included forfeiture of $60.00 pay per month for 3 months, and confinement at hard labor for 3 months, suspended for 3 months.  On 19 July 1967, the SPCM convening authority modified the sentence to show the suspended sentence to confinement for 3 months, was vacated. 

On 2 August 1967, he was convicted by a second SPCM of being AWOL from 
2 June to 16 July 1967.  His sentence included forfeiture of $64.00 pay per month for 6 months, and confinement at hard labor for 6 months.  Following his confinement, he was assigned to the U.S. Army, Special Processing Detachment, U.S. Army Garrison, Fort Hood.

On 17 August 1967, the applicant underwent a mental status evaluation, which determined that he was mentally responsible and could distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant was diagnosed with having a passive aggressive personality disorder and the physician recommended that he be separated from the Army by reason of unsuitability.  On 18 September 1967, he received a medical examination which cleared him for separation.

On 26 September 1967, a notification of elimination proceedings was sent by the unit commander to the applicant stating the commander’s intent to recommend separation action under the provision of AR 635-212, for unfitness.  The commander cited the applicant’s character and behavior deficiencies, his subsequent commission of petty court-martial offenses and his disregard of military authority.  The applicant consulted with legal counsel and was advised of his rights. He chose to waive a hearing by a board of officers and was informed of the impact of a less than fully honorable discharge.  He declined to make a statement on his own behalf.

On 29 September 1967, the separation authority approved his separation with an UD for unfitness, under the provision of Army Regulation 635-212, due to frequent incidents of a discreditable nature with civil or military authorities.  

On 4 October 1967, the applicant was separated with a UD.  He had 5 months 
and 18 days of total creditable service and 67 days of lost time due to AWOL, military confinement and 3 days of excess leave.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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 no later than 4 October 1967, the date he was discharged from active duty and signed his report of separation.  The time for the applicant to file a request or correction of any error or injustice expired 4 October 1970.

The application is dated 4 December 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommended a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  _________EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___WTM_  __REB  _  __JRS___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR200051098	
SUFFIX		
RECON		
DATE BOARDED	2001084	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1967/10/04	
DISCHARGE AUTHORITY	AR 635-212 FREQ INCIDENTS OF A DISCREDITABLE NATURE W/CIVIL OR MILITARY AUTH	
DISCHARGE REASON	A110.02	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A71.10	
2.		
3.		
4.		
5.		
6.