MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 March 2002                   
	DOCKET NUMBER:   AR2001061601

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Stanley Kelley		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 discharge be upgraded to general.  He states, “Just a few years ago the Government was reinstating all bad discharges.”  He dates the discovery as 1959 and states that the Board should consider it in the interest of justice to consider the case because, “I feel I should have [a] General Discharge.” 

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.
Explanatory 
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 from reconstructed personnel records.

The applicant enlisted for 3 years and, on 6 December 1957, entered active duty at the age of 18 years, 11 months and 16 days and with a seventh grade education.  He apparently completed basic combat training and started transportation school at Fort Eustis, Virginia.  

On 5 August 1958 he was convicted by special court-martial of being absent without leave (AWOL) from 2 June to 30 June 1958.  On 30 December 1958 he pled guilty in Superior Court, State of Washington to intentionally taking an automobile without the owner’s permission.  He was sentenced to supervised probation for 2 years and was ordered returned to military control for disposition of an AWOL offense.  On 5 February 1959 he was convicted by special court-martial of AWOL from 12 September to 12 October 1958.  

The applicant was notified of proposed elimination.  He consulted with counsel and waived his rights to appear before a board of officers, to be represented by counsel and to submit statements in his own behalf.  He acknowledged that he understood the nature and consequences of the undesirable discharge he might receive.

A mental health consultation found no disqualifying mental or physical defects warranting separation through medical channels.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.   He had sufficient mental capacity to understand the nature of any board proceedings and to conduct or participate in his own defense.

On 6 April 1959 a board of officers recommended that the applicant be separated under the provisions of Army Regulation 635-208.  The commanding general considered the applicant’s record and the recommendation and directed that an undesirable discharge due to unfitness be issued.  On 20 May 1959 the applicant was discharged.  He had 9 months and 25 days of creditable service and 230 days lost time.

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.

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 20 May 1959, the date of the discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 May 1962.

The application is dated 31 July 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

_SLP ___  __EJA___  ___SK__   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061601	
SUFFIX		
		
DATE BOARDED	20020319	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19590520	
DISCHARGE AUTHORITY	AR635-208 . . . . .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.