MEMORANDUM OF CONSIDERATION

	IN THE CASE OF 

	BOARD DATE:           27 April 2000 
	DOCKET NUMBER:   AR1999031035

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his earlier application to correct his records by upgrading his discharge.

APPLICANT STATES:  That he made a foolish mistake and was an immature youth and it has haunted him for 42 years. 

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 6 June 1990 (COPY ATTACHED).

The applicant applied to the Department of Justice for a pardon.  That request was referred here because he was not eligible for a pardon relative to his undesirable discharge.  That request is accepted here as an implied argument that his post-service adjustment and behavior warrant an upgrade of his discharge.  As such, it constitutes new argument that requires Board consideration.

His petition states that he has never even had a parking ticket, that he has been a good citizen, has worked since his release, has paid taxes and has been married to the same wife for 36 years, and is disabled since 1990 due to heart surgery.  He had to declare bankruptcy because of $87,000.00 in medical bills.  Substantiating statements from an acquaintance of 26 years, and two of 30 years report that the applicant has acted in a moral, law abiding manner and that he is disabled due to a heart condition but still cares for his wife who is also disabled.

The applicant’s military record shows that after approximately 8 months active duty he reenlisted for 4 years.  During his 3 years and 11 days in the Army he was twice convicted by special courts-martial.  He accumulated 410 days lost time and had only 1 year, 10 months and 24 days of creditable service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The evidence of the applicant’s post service adjustment and conduct, his financial problems and his own and his wife’s physical challenges are noted by the Board.  However, these factors do not outweigh his overall military record which is noteworthy only for the fact that he had almost as much lost time as he did creditable service.

2.  In the earlier consideration of this case, prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend relief that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 
3-year time limit.  The decisional document may not clearly state that the Board considered the merits of the case.  However, the display of the basic facts of the period of service, the details of the discharge processing and the provisions under which that processing occurred demonstrate that the merits of the case were considered. The Board does not normally deny applications simply because they were not submitted within 3 years.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___EB__  __TAP  __  __KLW___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031035	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE	UNDESIRABLE	
DATE OF DISCHARGE	1957	
DISCHARGE AUTHORITY	AR635-209	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.