MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            6 April 2000      
	DOCKET NUMBER:   AR1999030297

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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 under other than honorable conditions discharge be upgraded to honorable.  He states, in effect, that he fought for his country and feels he is entitled to benefits.  He notes that he was young and misinformed at the time of his military service.

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 enlisted and entered active duty on 21 June 1966 after securing a moral waiver for having sexual intercourse with a young woman under the age of 17.  In his request for a moral waiver it was noted that the applicant desired to make the Army "his life."  He was nearly 18 years of age at the time he entered active duty and had 12 years of formal education.

The applicant successfully completed basic and advanced individual training prior to being assigned to Europe in October 1966.  In May 1967 he commenced a series of AWOL periods which resulted in conviction by a special court-martial in March 1968.

In April 1968 the applicant was reassigned to Vietnam.  In the summer of 1968 he was granted leave for compassionate reason to assist his wife who had been assaulted.  The applicant did not return from his authorized leave and was dropped from the rolls of the Army in August 1968.  Documents in the applicant's file indicate he was admitted to a hospital in September 1968 when he injured his back jumping from a window when he was being pursued by the military police.  When he was released from the hospital he again departed AWOL.

The applicant returned to military control in May 1969 and, although documents associated with his administrative separation are no longer in available files, he apparently requested and was granted an administrative discharge in lieu of trial by court-martial.

His May 1969 medical examination found him medically qualified for separation.

On 28 May 1969 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10.

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.  

In October 1978 and June 1979 the applicant was given the opportunity to appear before the Army Discharge Review Board.  In both cases he elected to withdraw his application prior to the Board convening.  

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 28 May 1969, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 28 May 1972.

The application is dated 16 August 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

___jns__  ___emw__  ___jea__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999030297	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
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.