MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 MARCH 2002                   
	DOCKET NUMBER:   AR2001062585

	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. Linda D. Simmons		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:  In effect, that his undesirable discharge be upgraded to general.  The applicant states, in effect, that subsequent to his discharge he was diagnosed as having a “bad heart,” a condition, according to officials at the Central Texas Health Care Center, he was born with.  The applicant feels he should not have been allowed to join the Army.  The applicant submits no evidence in support of his request.

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:

On 8 January 1963, the applicant was inducted into the Army of the United States for a period of 2 years.  He successfully completed basic combat and advanced individual training at Fort Polk, Louisiana and Fort Leonard Wood, Missouri.

The applicant’s 8 January 1963 induction medical examination found the applicant qualified for induction.

Between 17 August 1963 and 2 June 1964, he was convicted by two special courts-martial and one summary court-martial for being absent without leave (AWOL) on three occasions for a total of 50 days.  He was sentenced to confinement at hard labor for a total of 9 months and forfeitures.

On 14 September 1964, a medical examination cleared the applicant for separation noting he had a passive dependent personality.

The facts and circumstances concerning the applicant’s discharge are not in the available records.  However, evidence shows that the applicant was AWOL from
4 July to 9 September 1964, placed in confinement on 10 September 1964, and discharged on 19 October 1964.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates the applicant was separated on 
19 October 1964, under the provisions of Army Regulation 625-208, with an under other than honorable conditions discharge.  He had 1 year, 2 months and 
14 days of creditable service and 212 days of 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.  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.  

There is no evidence in the available records nor did the applicant provide documentation of a diagnosed heart condition.  There is no evidence of any unfitting medical condition which caused his separation or should have voided his induction.

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 19 October 1964.  The time for the applicant to file a request for correction of any error or injustice expired on 19 October 1967.

The application is dated 14 August 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 _  __LDS __  __JTM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062585	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020321	
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.	110.00	
2.		
3.		
4.		
5.		
6.