MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 DECEMBER 2001                   
	DOCKET NUMBER:   AR2001058917

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern III		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 records be corrected by upgrading his discharge.  The applicant states he was told he had to serve 3 years in Germany, however, that was not the agreement, he wanted to serve in Vietnam.  

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:

The applicant enlisted on 25 February 1963 and reenlisted on 1 July 1964.  The applicant's initial enlistment contract does not indicate that he enlisted under a specific enlistment option, and his 1964 reenlistment contract indicates he enlisted for the Army Service School, subject to availability.

During March 1965 the applicant received two nonjudicial punishments, under the provisions of Article 15, Uniform Code of Military Justice for giving his DA Form 2A (Personnel Qualification Record) to a German National on 17 February 1965, and for consuming alcoholic beverages within a military barrack on 
26 March 1965.  His punishment's were reduction to pay grade E-2 and extra duty. 

On 30 March 1965, a psychiatric evaluation cleared the applicant for any appropriate administrative action, including separation.

On 8 April 1965, the applicant was convicted by a summary court-martial for breaking restriction.  He was sentenced to a forfeiture and additional restriction.  

On 16 April 1965, the applicant's commander recommended that he be eliminated for the service under the provisions of Army Regulation 635-208, for unfitness, with the issuance of an undesirable discharge certificate.  The applicant's commander stated that his conduct and efficiency was unsatisfactory, that he had been a constant disciplinary problem, that he only does a satisfactory job under constant supervision and gives the NCO in charge a hard time especially when there are two or three others involved in the same detail, that he would constantly bicker among the other men performing the detail until there was confusion and disorder. 

The applicant authenticated a statement with his initials and signature in which he declined legal counsel, waived his right to a hearing by a board of officers, elected not to submit a statement in his own behalf, and stated that he understood the ramifications of receiving an undesirable discharge.

On 3 May 1965, the appropriate separation authority approved the applicant's separation under the provisions of Army Regulation 635-208, reduced him to the pay grade of E-1, and directed the issuance of an undesirable discharge certificate.

On 25 May 1965, the applicant was discharged under the provisions of the above cited regulation, under conditions other that honorable.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 10 months and 25 days of creditable service.  

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.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character or the discharge is commensurate with the applicant's overall record of military service. 

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 25 May 1965, the date of the applicant's discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 May 1968.

The application is dated 13 June 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 his 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 his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __TBR __  __LE____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058917	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011220	
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.	142.00	
2.		
3.		
4.		
5.		
6.