MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 August 2000
	DOCKET NUMBER:   AR1999032535

	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		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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 undesirable discharge be upgraded to an honorable or general discharge.  He states that he was underage at the time he enlisted and that his mother was tricked into allowing him to enter the Army in order to have him released from a juvenile center.  He notes that he did not have an attorney at the time 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 were apparently lost or destroyed during a 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from information provided by the applicant and information contained on his 1955 DD Form 214 (Report of Separation from the Armed Forces of the United States).

The applicant enlisted and entered active duty on 29 May 1953.  His DD Form 214 indicates he was almost 18 years old at the time of his enlistment, based on his recorded date of birth of August 1935.  However, a copy of the applicant's birth certificate, provided by the applicant and signed by his aunt and sister in August 1976, indicates he was born in August 1936.

His DD Form 214 indicates he was discharged under the provisions of Army Regulation 635-368 on 4 March 1955 based on a "Board of Officers"  which concluded that the applicant exhibited "habits and traits of character manifested by misconduct."  At the time of his separation he had accumulated 237 days of lost time during his 1 year, 1 months, and 12 days of active Federal service.

Copies of the applicant's discharge proceeding were not in records available to the Board.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug addiction, or habitual shirking.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was 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 4 March 1955, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 4 March 1958.

The application is dated 13 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

___dj ___  __ewl ___  __kak___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999032535	
SUFFIX		
RECON		
DATE BOARDED	2000/08/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1955/03/04	
DISCHARGE AUTHORITY	AR 635-368	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.