MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           16 August 2001                  
	DOCKET NUMBER:   AR2001053620

	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	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		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 he received a general discharge, under honorable conditions.  He indicates he went AWOL (Absent Without Leave) because his brother was hurt aboard ship.  He reported to Fort Dix, New Jersey so he would not be considered AWOL.  By the time he reported to his unit in Okinawa, they were in Vietnam.  He further claims he was having problems with his PTSD (Post-Traumatic Stress Disorder) and never realized he was having problems.  Counsel relates the applicant’s contentions and theorized that the stress and personal trauma due to his brother’s condition and the rigors of military service could have affected his decision-making skills at this difficult time in his life.  He indicates the applicant has recognized, in hindsight, his actions were not appropriate, but the choices he made were at a desperate time in his life and he was young and didn’t fully understand the consequences of such actions.  Further, he has more than paid the price or those actions and is now an honorable man and needs his discharge upgraded to provide closure on the matter.

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:

During the period 12 March to 11 September 1963, he served honorably on active duty for training as a member of the New York Army National Guard.  He completed his required training and was awarded military occupational specialty (MOS) 640 (Light Vehicle Driver).  He was advanced to pay grade E-2 effective 28 May 1963.

On 10 March 1964, he enlisted in the Regular Army, in pay grade E-2 and MOS 64A (formerly 640).

On 30 March 1964, 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 28 March 1964.  His punishment included a forfeiture of $20 and extra duty for 7 days.

During the period 24 May 1964 to 4 May 1965, he served in Okinawa.

On 17 May 1965, he accepted NJP for being AWOL for the period 8 to 17 May 1965.  His punishment included a forfeiture of $20.

On 29 September 1964, he was advanced to pay grade E-3.

During the period 5 to 22 April 1965, he was AWOL.

During the period 5 May 1965 to 4 May 1966, he served in Vietnam.

On 17 May 1965, he accepted NJP for being AWOL during the period 8 to        17 May 1965.  His punishment was a forfeiture of $20.

On 22 June 1965, he was convicted by a Special Court-Martial (SPCM) of being AWOL for the period 5 to 23 April 1965.  His sentence included hard labor without confinement for 1 month and a reduction to pay grade E-1.  The sentence was suspended for 3 months.

On 24 June 1966, he accepted NJP for being AWOL for the period 18 to 20 June 1966.  His punishment included a forfeiture of $16 and extra duty for 3 days.

On 29 August 1966, he was convicted by a SPCM of being AWOL for the periods 11 April to on or about 9 June 1966 and 27 June to on or about 18 August 1966.  His sentence included confinement at hard labor for 6 months, reduction to pay grade E-1 and a forfeiture of $40 pay per month for 3 months.

On 23 September 1966, a neuropsychiatric examination found the applicant to be mentally responsible and cleared him for any action deemed appropriate by his command.

On 3 October 1966, a physical examination cleared the applicant for separation.

On 3 October 1966, the unit commander recommended elimination and issuance of an undesirable discharge.

On 17 October 1966, the applicant, after he had been advised by his legal counsel, acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under Army Regulation 635-212.  He waived consideration of and personnel appearance before a board of officers and representation by legal counsel.  He indicated statements in his own behalf would not be submitted.

On 26 October 1966, the appropriate separation authority approved his discharge and directed issuance of a discharge under conditions other than honorable.

On 3 November 1966, he was discharged under conditions other than honorable in pay grade E-1 under the above referenced regulation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 2 years and 1 month of creditable service and 208 days of lost time.

The applicant has not submitted evidence to support his contentions.

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.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel from active duty for unfitness and unsuitability. That regulation provided, in pertinent part, that commanders would separate a member for unfitness when one of the following conditions existed: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming drugs or marijuana; an established pattern for shirking; and established pattern showing dishonorable failure to pay just debts; or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 

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 3 November 1966, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 3 November 1969.

The application is dated 13 February 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_tfb____  __jtm___  _jh____        CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001053620	
SUFFIX		
RECON		
DATE BOARDED	20010816	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.000	
2.		
3.		
4.		
5.		
6.		

	AR2001053620	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.		
2.		
3.		
4.		
5.		
6.