MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 NOVEMBER 2001
	DOCKET NUMBER:   AR2001059810

	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. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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:  In effect, that his records be corrected by upgrading his undesirable discharge.  The applicant states, via his Veterans Service Manager, that he was drafted with a physical disability (digital thumbs), served his country in combat, and would not have been charged with being absent without leave (AWOL), curfew violations or court-martial convictions if he had been correctly medically classified and sent home, and at the very least his discharge should be upgraded to a "General under Honorable Conditions."  In support of his request he submits a statement from his physician indicating he has bilateral digitalized thumbs, a congenital disorder he was born with.

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 lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained form alternate sources.

On 2 April 1951, the applicant was inducted into the Army of the United States for a period of 2 years.

The applicant’s entrance medical examination indicates he failed the Armed Forces Qualification Test, that he had 10 years of civilian education in Puerto Rico, that he could read and write English.  He was found qualified for military service.

On 4 February 1952, he was convicted by a summary court-martial of three specifications of curfew violations.  He was sentenced to a forfeiture of pay.

On 4 November 1952, he was convicted by a special court-martial of being AWOL from 9 August to 5 October 1952.  He was sentenced to confinement at hard labor for two months, a forfeiture of pay and reduction to pay grade E-1.

On 15 April 1953 and 22 December 1953 he was convicted by separate special courts-martial of being AWOL from 9 January 1953 to 8 April 1953, and from   
3 July 1953 to 8 December 1953.  He was sentenced to confinement at hard labor for six months and a forfeiture of pay for six months for each trial conviction.   

On 4 January 1954, a medial examination found the applicant had no disqualifying mental or physical defects sufficient to warrant a disability separation.  The examination noted that the applicant had an appendectomy while in Korea.  It also noted that he was able to distinguish right from wrong and adhere to the right.   

On 11 January 1954, the applicant’s commander requested that he appear before a board of officers convened under the provisions of Army Regulation 615-368, to determine if he should be discharged from military service.  The commander’s request was based on the applicant’s record which revealed various infractions of rules and regulations which were prejudicial to good order and military discipline.  The commander felt that the applicant’s expeditious separation from the service was in the best interest of the Army.  

On 18 January 1954, the administrative board of officers found the applicant unfit for further military service, and recommended that he be separated under the provisions of Army Regulation 615-368, for unfitness, with an undesirable discharge. 

On 25 January 1954, the appropriate separation authority approved the findings and recommendation of the board.

On 3 February 1954, the applicant was discharged under the provisions of the above cited regulation and issued an undesirable discharge.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates he had 1 year, 8 months and 9 days of creditable service and 133 days of lost time.

Army Regulation 615-368, in effect at the 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 that honorable conditions and an undesirable discharge certificate was issued. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing. 

There is no evidence in the applicant’s available records to substantiate his claim that his medical condition (digital thumbs) was the cause of his receiving an undesirable discharge and there is no evidence it was medically disqualifying.   

The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.
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 February 1954, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 3 February 1957.

The application is dated 11 May 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

__RVO__  __JPI ___  __WDP__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001059810	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011129	
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.