MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 JULY 2003                  
	DOCKET NUMBER:   AR2003085244

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O'Shaughnessy, Jr.		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 honorable or general.

The applicant states that he had a son to support.  He did not make enough money in the Army.  If he had to do it over, he would change things.    

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:

The applicant was inducted into the Army on 13 July 1967, completed basic training, and in October 1967 was assigned to Fort Gordon, Georgia for advanced training.  Beginning in October 1967 the applicant began a series of AWOLs, resulting in nonjudicial punishment under Article 15, UCMJ, on three occasions for three separate periods of AWOL.  

He was AWOL again on two occasions, from 15 April 1968 to 30 April 1968, and from 6 May 1968 to 15 July 1968.  On 26 July 1968 the applicant was arraigned and tried before a special court-martial which convened at Fort Gordon.  He pled guilty to the two periods of AWOL, and was sentenced to be confined at hard labor for six months, to be reduced to the lowest grade, and to forfeit $46.00 per months for six months.  The sentence was approved, however, that portion of the sentence to confinement at hard labor for six months was suspended for six months, unless sooner vacated.

Special Court-Martial Order Number 300, dated 5 August 1968, vacated the suspension, and the applicant was directed to be confined.  The applicant was in confinement at Fort Leavenworth, Kansas until 29 November 1968, at which time the unexecuted portion of the sentence was remitted. 

The applicant was AWOL from 13 January 1969 to 28 February 1969.  He was arraigned and tried on 3 April 1969 before a special court-martial which convened at Fort Dix, New Jersey.  He pled guilty and was sentenced to be confined at hard labor for one month.  The sentence was approved and the applicant was directed to be confined at the Fort Dix stockade.

On 13 March 1969 the applicant's commanding officer advised the applicant that he was recommending that he be separated from the Army because of unfitness under the provisions of Army Regulation 635-212.  The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action.  He waived consideration of his case by a board of officers and declined to submit statements in his own behalf.  

A 15 April 1969 mental hygiene consultation service certificate indicates that the applicant was referred for psychiatric evaluation prior to administrative separation.  The applicant was diagnosed as having a passive-aggressive personality, chronic, moderate; manifested by repeated AWOLs, tendency to blame others for his problems, and generally passive demeanor with occasional outbursts of poor impulse control.  He was mentally responsible, had the ability to distinguish right from wrong and adhere to the right, and was psychiatrically cleared for any action deemed appropriate.

A 29 April 1969 report of medical evaluation indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1.  In the report of medical history that he furnished for the examination, the applicant stated that his health was good.

On 2 May 1969 the applicant's commanding officer recommended that the applicant be eliminated from the Army for unfitness.  On 9 May 1969 the separation authority approved the recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate.

The applicant was discharged on 13 May 1969.  He had 11 months and 26 days of service, and 309 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge under other than honorable conditions was in error or unjust; nor has he provided good reason to grant his request to upgrade his discharge; consequently, there is no basis to correct his record as he has requested.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 May 1969, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 May 1972.

The application is dated 27 December 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

__MKP__  ___WTM_  __TEO __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003085244	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030729	
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.