MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 MAY 2002                   
	DOCKET NUMBER:   AR2002066899

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 discharge.  The applicant indicates his discharge was unjust.  In support of his request the applicant submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 31 December 1962, he enlisted in the Regular Army for a period of 3 years.

On 27 July 1963, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his unit without a proper pass.  His punishment was forfeiture, restriction and extra duty.

On 12 August 1963, he was convicted by a summary court-martial of breaking restriction and unlawfully entering the privately owned vehicle of a noncommissioned officer.  He was sentenced to 45 days of hard labor without 
confinement, a forfeiture and reduction to pay grade E-1.

On 15 October 1963, the applicant’s commander recommended his elimination  from the service, stating that his conduct and efficiency were unsatisfactory, that he needed constant supervision and guidance while performing the simplest of jobs, and was a continual disciplinary problem.   

On 16 October 1963, he underwent a psychiatric evaluation.  The evaluating psychiatrist stated that the applicant was experiencing difficulty both on and off the job; that he was probably below average in intelligence, and that there was no evidence of psychosis.  The findings and conclusions of the evaluation stated that the applicant lacked the intellectual endowment necessary to perform as an efficient soldier, and recommended separation under the provisions of Army Regulation 635-209. 

On 21 October 1963, he acknowledged his commander’s intent to eliminate him from military service.  He declined legal counsel, and waived a hearing before a board of officers.  He acknowledged he understood the ramification of receiving a less than honorable discharge, and made a statement that he did not feel he could put up with the discipline in the Army, that if he stayed in the military he might get into serious trouble with other noncommissioned officers telling him what to do all the time. 

On 18 November 1963, the appropriate separation authority approved his commander’s recommendation and directed the applicant’s separation under the provisions of Army Regulation 635-209.  

On 2 December 1963, he was discharged under honorable conditions, by reason of unsuitability, under the provisions of Army Regulation 635-209.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 11 months and 2 days of total active service.

Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively.  A general or honorable discharge was considered appropriate.  

On 11 June 1997, this Board denied the applicant’s request to correct his records to show he was separated from the service by reason of physical disability.  

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 2 December 1963, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 2 December 1966.

The application is dated 12 November 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

__FNE __  __RWA__  __PM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002066899	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020516	
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.