MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           31 May 2000                  
	DOCKET NUMBER:   AR19990032893

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelly		Member	
	Mr. John P. Infante		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, physical disability discharge.

The applicant states that his illness was not known at the time of his discharge; however, since then, his condition has been determined to be a 70 percent service connected disability.  He should have a discharged for physical disability or received an honorable discharge, not one that is uncharacterized.

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 Oregon Army National Guard for 8 years on       17July 1990.  He was ordered to active duty for training to Fort Benning, Georgia, with a reporting date of 28 July 1990.  On 4 October 1990 the unexecuted portion of the order was rescinded and he was returned to state control without completing training.  The memorandum rescinding the original order indicated that the Red Cross confirmed family health problems (father terminally ill and mother hospitalized with heart problems) and that the applicant’s presence at home was required as soon as possible.

The applicant was discharged from the Army National Guard and as a Reserve of the Army on 10 October 1990.  He was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26u, defective enlistment agreement.  His service was uncharacterized.  He had 2 months, and 24 days of service.

The applicant’s records contain no medical evidence, and the applicant has not submitted any evidence of any medical ailments.  His records do not indicate the specific reason why his enlistment agreement was defective.

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 10 October 1990, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 October 1993.

The application is dated 8 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

___sk___  ___jev___  ___jpi___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999032893	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000531	
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.  177	108.00	
2.	142.00	
3.		
4.		
5.		
6.