MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           17 April 2001
	DOCKET NUMBER:   AR2001051941

	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. John H. Kern		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 records be corrected to show that he was honorably separated.  Since the issuance of his undesirable discharge of            7 August 1953, he has continued to suffer the adverse consequence of the bad discharge both mentally and economically.  He indicates that his youth and immaturity affected his ability to serve.  He provides a copy of his records and letters of support.  Counsel requested his discharge be upgraded based on his deprived background, lack of necessary discipline and education to successfully serve in the military; he was diagnosed with a personality disorder which diminished his ability to serve; and, his post service activities are free of any criminal activity.  He had maintained steady employment over the years and is respected in his community.  Counsel opined that this submission, in conjunction with the official Army records, amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.

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 born on 13 December 1929.

On 12 March 1951, he was inducted into the Army of the United States, at age 21.  He completed his required training and was awarded military occupational specialty 4014 (Automotive Mechanic). 

On 13 July 1951, he was convicted by a summary court-martial (SCM) for being absent without leave (AWOL) for the period 11 June to 10 July 1951.  His sentence included confinement at hard labor (CHL) for 30 days and a forfeiture of $50.

On 15 November 1951, he was convicted by a special court-martial (SPCM) for being AWOL for the period 1 August to 22 October 1951.  His sentence included CHL for 2 months and a forfeiture of $50 pay per month for 6 months.

On 11 February 1952, he was convicted by a SPCM for being AWOL for the period 8 to 30 January 1952.  His sentence included CHL for 30 days.

On 1 April 1952, he was convicted by a SCM for being AWOL for the period 19 to 31 March 1952.  His sentence included CHL for 30 days.

On 20 June 1952, he was advanced to pay grade E-2.

On 31 October 1952, he was convicted by a SPCM for being AWOL for the period 15 September to 22 October 1952.  His sentence included CHL for           3 months and a forfeiture of $34 pay per month for 4 months.

On 4 May 1953, he was convicted by a SPCM for being AWOL for the period      2 February to 23 April 1953.  His sentence included CHL for 6 months and a forfeiture of $28 pay per month for 6 months.

On 16 June 1953, a neuropsychiatric examination indicated a diagnosis of character and behavior disorder, emotional instability type, manifested by AWOL’s, disrespect for authority and somatic symptoms.  This condition did not warrant separation from the service under medical discharge regulations.  The recommendation was that he be considered for separation under Army Regulation 615-368.

On 29 July 1953, a Report of Proceedings of a Board of Officers indicated a finding that the applicant gave evidence of habits and character whch rendered retention in the service undesirable.  It also recommended discharge due to unfitness.  The appropriate separation authority approved the board action on     4 August 1953.

On 7 August 1953, he was discharged with a characterization of undesirable, in pay grade E-1.  His separation document indicates he had 7 months and 28 days of creditable service and 628 days of lost time.

Army Regulation 615-368, in effect at that time set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends.  When rehabilitation was deemed unsuccessful, impractical, or inappropriate and separation for unfitness was warranted, discharge was normally under other than honorable conditions and an Undesirable Discharge Certificate was issued.

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.

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.

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 August 1953, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 7 August 1956.

The application is dated 8 January 2001 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

_mvt____  _jhk____  _mm___      CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001051941	
SUFFIX		
RECON		
DATE BOARDED	20010417	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	110.00	
2.		
3.		
4.		
5.		
6.