MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 March 2000      
	DOCKET NUMBER:   AR1999030531

	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. Edwin S. Castle		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Debra Williams		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:  In effect, that his under other than honorable conditions discharge be upgraded to honorable.  He submits a pre-printed check-list in support of his request on which he checked several issues as the reason he believes his discharge should be upgraded.  The items he checked included that he “was so close to finishing [his] tour that it was unfair to give [him] a bad discharge” and that personal and financial problems, as well as use of drugs and alcohol “impaired [his] ability to serve,” and that the punishment he “got at discharge was too harsh-it was much worse than most people got for the same offense."  He submits no evidence to support the issues he believes warrant upgrading of his discharge.

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 23 April 1979 at the age of 19 with 10 years of formal education.  He successfully completed basic and advanced individual training prior to being assigned to Fort Bliss, Texas in August 1979.  Between January and December 1980 he was punished on four different occasions under Article 15 of the UCMJ for various infractions including several counts of failing to be at his appointed place of duty, being disorderly and disobeying a lawful order.

On 25 May 1981 the applicant and another soldier broke into a PX facility and stole 172 packs of cigarettes, 8 cartons of cigarettes, 34 packages of sandwich meats, 24 cans of soft drinks, 3 shopping baskets and a container of water.  When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

His request was approved and on 19 August 1981 the applicant was discharged under other than honorable conditions.

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 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 19 August 1981, the date the applicant was released from active duty and authenticate his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 19 August 1984.

The application is dated 15 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

___esc__  ____kan_  ___dw___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999030531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000302	
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.