MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 March 2000                  
	DOCKET NUMBER:   AR1999029737

	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:

	Mr. Raymond V. O’Connor, Jr. 		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Ernest W. Lutz, 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 records be corrected by upgrading his discharge.  The applicant states that he served 8 years in the military, and that he is a Vietnam Veteran.

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 18 May 1967, the applicant reenlisted in the Regular Army for a period of      6 years.

The applicant was absent without leave (AWOL) from 11 May to 8 June 1968,   23 July 1968 to 28 December 1975; confined by civil authority from                     29 December to 7 January 1976, and confined by military authority from              8 to 12 January 1976.   

On 15 January 1976, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he acknowledged that he understood the possible ramifications of receiving an undesirable discharge.  The applicant submitted a statement in his own behalf which stated that he went AWOL because he was not making enough money in the service to support his family. 

On 30 January 1976, the appropriate separation authority approved the applicant’s request and directed that he be reduced to the pay grade of E-1, and issued an undesirable discharge certificate.

On 23 March 1976, the applicant was discharged with an undesirable discharge certificate, under the above cited regulation for the good of the service, in lieu of trial by court-martial.  His Report of Separation indicates he had 1 year,              3 months and 16 days of creditable service, and 2759 days of lost time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.
There is not documentation in the available records to substantiate the applicant’s claim that he is a Vietnam Veteran.  There is no evidence that the applicant served in Vietnam.

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 23 March 1976, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 23 March 1979.

The application is dated 26 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

___rvo___  ___eja__  __ewl____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999029737	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000308	
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.