MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 August 2002                   
	DOCKET NUMBER:   AR2002070102

	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. Paul Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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 discharge be upgraded to a General Discharge (GD).  He indicates he was an immature 17-year old with a troubled childhood.  His mother died when he was 16 months old and he was the youngest of 8 siblings.  He was absent without leave (AWOL) and was given a choice to straighten out or go home.  He has turned his life around and has become a responsible citizen.

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 from reconstructed personnel records.

The applicant was born on 27 May 1938 and enlisted in the Regular Army for 3 years on 14 September 1955.  Following completion of all required military training, he was awarded military occupational specialty (MOS) 120.00, Pioneer.

On 25 May 1956, the applicant was convicted by a Summary Court-Martial of being AWOL from 7 May through 21 May 1956.  The sentence included restriction for 1 month and forfeiture of $50.00.

On 13 July 1956, the applicant was convicted by a Summary Court-Martial of being AWOL from 2 July through 5 July 1956.  The sentence included hard labor without confinement for 1 month and forfeiture of $50.00.

On 2 August 1956, the applicant was convicted by a Summary Court-Martial of being AWOL from 26 July through 27 July 1956.  The sentence included confinement at hard labor for 1 month and forfeiture of $50.00.

On 4 August 1956, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation (AR) 635-208, paragraph 1c, for unfitness.  On 7 August 1956, the battalion commander recommended approval.

On 8 August 1956, the applicant was notified to appear before a board of officers under the provisions of AR 635-208 to answer allegations of habitual shirking, unreliability, and misconduct.  The applicant acknowledged receipt of the notification and indicated he did not desire representation by counsel.

On 9 August 1956, a board of officers was convened and the applicant appeared without counsel.

On 9 August 1956, the Dispensary Surgeon indicated that a psychiatric evaluation was not required.

On 13 August 1956, the board of officers recommended that the applicant be discharged under the provisions of AR 635-208 for unfitness with an Undesirable Discharge (UD).  Reasons cited were misconduct, being an habitual shirker, unreliability, and repeated petty offenses.

On 20 August 1956, the General Court Martial Convening Authority approved the Board's recommendations and directed the issuance of a UD.

On 6 September 1956, a separation physical found the applicant physically qualified for separation.

On 6 September 1956, the applicant was separated with a UD.  He was credited with 10 months and 6 days of active Federal service, and he had 47 days of lost time.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, a UD was normally issued.

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 6 September 1956, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 September 1959.

The application is dated 26 February 2002 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

__mmd___  __rwa___  __clg___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002070102	
SUFFIX		
RECON		
DATE BOARDED	20020820	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19560906	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.