MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  7 June 2000
	DOCKET NUMBER:   AR1999031144

	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. Carl W. S. Chun
Ms. Stephanie Thompkins		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. James P. Stueve		Member	
	Mr. Edwin S. Castle		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 dishonorable discharge be upgraded to a general discharge under honorable conditions.  He states that he received good conduct and efficiency ratings and his ability to serve was impaired by alcohol and his youth and immaturity.  He states he was discharged under the wrong regulation, and that he should have been discharged under AR 635-108.  He further states he did not know the impact of a dishonorable discharge.  He submits a detailed statement, a copy of his DD Form 214, a copy of his service record, and a copy of a Report of Medical Examination dated 20 November 1960 in support of his request.

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 was enlisted in the Regular Army for 3 years as a Recruit (E-1) on 
25 September 1958.  He was advanced to private E-2 on 25 January 1959 and private first class E-3 on 1 December 1959.

His Record of Court-Martial Conviction shows he was tried and convicted by a Special Court-Martial on 20 June 1959 for stealing an electric razor and stealing the lawful currency of another soldier.  He was sentenced to confinement for 
6 months and forfeiture of pay for 6 months.

He was tried and convicted by Special Court-Martial on 27 October 1960 for assault of a NCO by striking him with his fist on 8 October 1960.  He was sentenced to reduction in grade to RCT E-1, confinement for 6 months and forfeiture of pay.  The applicant was confined in the Fort Bliss, TX stockade on 
27 October 1960 based on his sentence and pending disposition by civil authorities based on a separate civil conviction for auto theft.

On 13 February 1961, the applicant’s commander requested that he be separated from the service for conviction by civil court with an Undesirable Discharge.  He rated the applicant’s conduct and efficiency as unsatisfactory.  The commander stated that the applicant was tried and convicted in the United States District Court, Western District of Texas, El Paso, Texas on 4 October 1960 for having taken and carried away, with intent to steal, a 1956 Chevrolet pickup truck, property of the United States.  The case resulted in the applicant being transferred from the Fort Bliss stockade to incarceration at the El Paso, TX city jail, and later to the Federal Reformatory, El Reno, Oklahoma for a term of 8 months.

On 14 February 1961, the applicant was notified of his commander’s recommendation for discharge under Army Regulation 635-206 for civil conviction.  In a written statement he waived his right to counsel, a hearing by a board of officers and stated he did not intend to appeal the conviction.  He also acknowledged he understood that if an Undesirable Discharge is issued that such discharge may deprive him of many or all rights as a Veteran under both Federal and State law.

On 28 February 1961, the appropriate authority approved the discharge and directed that civil authorities concerned be notified of final disposition of this case.

On 8 March 1961, he was discharged under other than honorable conditions, in pay grade E-1, and he was issued an Undesirable Discharge Certificate.  He was determined to be medically qualified for separation by appropriate medical authority.  His report of separation shows he had 230 days lost time and 80 days nonpay status from 19 December 1960 to 8 March 1961. 

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.

Army Regulation 635-206, then in effect, provided, in pertinent part, that enlisted members who were convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more were to be considered for elimination.  When separation was for civil conviction, they could be separated administratively if they were afforded a board of officers and the associated rights of that procedure even though the available evidence of the offense might prove insufficient to warrant conviction in a trial by court-martial.  When such separation was warranted an undesirable discharge was considered appropriate.

Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 8 March 1961, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 8 March 1964.

The application is dated 18 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

___MP___  __JS___  __EC___  CONCUR WITH DETERMINATION

		       Carl W. S. Chun
	                                        Director, Army Board for Correction
	                                                      of Military Records

INDEX

CASE ID	AR1999031144	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
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.		
2.		
3.		
4.		
5.		
6.