MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            9 March 2000    
	DOCKET NUMBER:   AR1999029514

	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.  

	Ms. Gale J Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Ms. Carol Jo Suiter		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 records be corrected by upgrading his discharge.  The applicant states that he had asked for an extension because his wife was very sick and he was trying to raise two small children; and that he did not go to another country as a lot of other people did who were granted amnesty. In support of his request the applicant submits a copy of the summary of evidence from his trial by general court-martial.  

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 alternate sources.

On 21 January 1953, he enlisted in the Regular Army, was honorably discharged on   22 August 1954, and immediately reenlisted.  His entire Army career was spent at Fort Hood, Texas.

On 31 August 1955, the applicant was convicted by a general court-martial for being AWOL for the period 15 February -13 July 1955.  He was sentenced to be dishonorably discharged from the Army, to forfeit all pay and allowances, and to be confined at hard labor for one year.

On 15 September 1955, the applicant’s sentence was approved, but the execution of the dishonorable discharge was suspended until his released from confinement, or until completion of the appellate review, whichever  was the later date.  The applicant was committed to the Branch United States Disciplinary Barracks, at Fort Crowder, Missouri.

On 28 September 1955, the United States Army Board of Review affirmed the findings and sentence.

On 10 November 1955, a general court-martial order directed that the applicant’s sentence be duly executed, with the exception of that portion adjudging a dishonorable discharge, which it suspended until the applicant’s release from confinement.

There is no evidence in the available records showing the date of the applicant’s discharge, however, documents from the Branch United States Disciplinary Barracks at Fort Crowder, Missouri reveal that he was released from prison on 30 August 1956.

The maximum punishment for a conviction of AWOL exceeding 30 days which was terminated by apprehension is a dishonorable discharge, 1 year and 6 months confinement, and total forfeiture.

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 30 August 1956, the date the applicant was released from prison and presumedly discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 30 August 1959.

The application is dated 10 July 1999 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

___jh____  ___tdh__  ___cjs___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999029514	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000309	
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.