Author: CoopeWL

ABCMR Memorandum of                                                             AR1999032105   
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          16 March 2000                    
	DOCKET NUMBER:  AR1999032105

	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.  

| Mrs. Judy Blanchard-Miller | | Analyst

  The following members, a quorum, were present:

| Ms. Jennifer L. Prater | | Chairperson
| Mr. Orville W. Troesch, Jr. | | Member
| Mr. Christopher J. Prosser | | 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, an upgrade of his discharge to an honorable 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:

The applicant enlisted in the Regular Army on 16 June 1978, for 3 years.  
He completed the required training and was awarded military occupational specialty 11B10 (Infantryman).  The highest grade he achieved was pay grade 
E-2. 

The applicant’s military records indicates that he was counseled on numerous occasions for his failure to perform his duties without constant supervision, for frequent incidents of disruptive behavior, for his lack of respect for authority, for being disrespectful in language toward his superiors and for disobeying lawful orders.  

On 27 March 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order and for communicating a threat.  His imposed punishment was a reduction to pay grade E-1. 

On 23 April 1979, the applicant accepted an NJP under Article 15, UCMJ, for being disrespectful in language toward a superior Noncommissioned Officer.  His imposed punishment was a forfeiture of 7 days pay (suspended for 30 days), 
14 days restriction and extra duty.   

On 24 April 1979, the applicant’s commander advised him that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program (EDP) with a GD.  The decision was based on the applicant’s poor attitude, his lack of motivation, his lack of self discipline, his inability to adapt socially or emotionally and his failure to meet acceptable standards for continued military service.  The applicant acknowledged notification of the proposed discharge from the Army under the provisions of Army Regulation 635-200, paragraph 5-31, EDP.  The applicant acknowledged that if he accepted the discharge, action would be taken to recoup any unearned 

portions of the enlistment bonus which he may have received; that he would not be permitted to apply for enlistment in the United States Army for 2 years from his date of discharge.  The applicant was advised by legal counsel of the contemplated separation action and the rights available to him.  The applicant signed a statement that he understood the effects of a discharge under other than fully honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  The applicant voluntarily consented to this discharge under honorable conditions.

On 25 April 1979, the appropriate authority approved his request and directed the issuance of a GD.  On 30 April 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 5-31, EDP, with a GD.  He had completed 10 months and 5 days of creditable active service.

Army Regulation 635-200, paragraph 5-31, provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army will be expeditiously eliminated from military service before a board or punitive action become necessary.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue 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 16 June 1979, the date the applicant was discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 June 1982.

The application is dated 4 October 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

__jlp___  __owt___  __cjp___  CONCUR WITH DETERMINATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID | AR1999032105
SUFFIX |
RECON |
DATE BOARDED | 20000316
TYPE OF DISCHARGE | (GD,)
DATE OF DISCHARGE | 19790430
DISCHARGE AUTHORITY | AR635-200,5-31
DISCHARGE REASON | A24.00
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 144.2400
2. | 110.00
3. |
4. |
5. |
6. |