MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  16 October 2003
	DOCKET NUMBER:  AR2003083943

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Hubert O. Fry		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 general discharge be upgraded to honorable. He states that his discharge was in error and unjust.  His duty performance was the result of Post Traumatic Stress Disorder (PTSD) and other medical conditions.

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 he entered active duty on 17 June 1969, as a combat engineer.  He served in Vietnam from 15 February to 16 December 1970.

Between 5 January 1970 and 16 April 1971, he received nonjudicial punishment on five occasions under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order on two occasions, for violation of a lawful regulation, and for being AWOL from 5 to 26 December 1969 (21 days), from 8 to 15 February 1971, and from 12 to 13 April 1971.  His punishments consisted of forfeitures of pay, reduction to pay grade E-3 and E-2, restriction, and extra duties.

The applicant was barred from reenlistment.

He was convicted by a summary court-martial of being AWOL from 3 to 24 May 1971 (21 days).  His sentence consisted of a forfeiture of pay and confinement at hard labor for 30 days.

On 10 August 1971, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212, for unsuitability.  He based his recommendation on the applicant's inability, irresponsibility, and lack of required interest needed to perform his mission satisfactorily.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

On 20 August 1971, the separation authority approved the recommendation for discharge and directed that he be furnished a General Discharge.  The applicant was discharged on 1 September 1971.  He had a total of 2 years and 20 days of creditable service and had 57 days of lost time due to AWOL and confinement. 

The applicant's medical records are unavailable for review by this Board.

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. 
Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  It stated, in pertinent part, that individuals would be separated for unsuitability due to aptitude, character and behavior disorders, apathy, alcoholism, or enuresis and that the individual would be furnished an honorable or general discharge.

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 1 September 1971, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 1 September 1974.

The Board has noted the applicant's contention; however, there is no evidence in the available records, and the applicant has provided no evidence, to support his contention.

The application is dated 25 November 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__ao____  __mb____  ___hf___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003083943	
SUFFIX		
RECON		
DATE BOARDED	20031016	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19710901	
DISCHARGE AUTHORITY	AR .635-212	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.