MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            6 April 2000                  
	DOCKET NUMBER:   AR1999032961

	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.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James e. Anderholm		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:  That his general discharge be upgraded to an honorable discharge.  He states that he was involved in an accident which resulted in the death of a fellow soldier.  He notes that the treatment he received following the accident was extremely upsetting and that while he tried to get help from his chain of command they couldn't be with him 24 hours a day and he got into trouble.  He states that when he was offered a general discharge he accepted it because he couldn't perform his duties because of the state of mind he was in.  He submits no evidence to support his request except copies of documents associated with his 1983 Army Discharge Review Board proceedings.

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 entered active duty on 24 January 1979 and successfully completed basic and advanced individual training prior to being assigned to Germany in May 1979.  In July 1979 he was promoted to pay grade E-2.

Between March 1979 and June 1981 the applicant was punished on 6 different occasions under Article 15 of the UCMJ.  His offenses included failing to obey a lawful order, failure to go to appointed place of duty, disrespect and wrongfully storing an M-16 rifle in a locker.

In May 1981 his unit commander initiated action to bar the applicant from reenlisting.  The commander noted that the applicant had a "poor attitude, is generally apathetic, does not appear to have a desire to improve, continuously looks for ways to get out of work, and must be continuously reminded and supervised to accomplish tasks and maintain his appearance.”

In July 1981 the applicant was evaluated by mental health officials who found the applicant fully oriented, and able to distinguish right from wrong and able to adhere to the right.  

On 20 July 1981 the applicant's commander initiated action to administratively separate the applicant for unsuitability.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  The recommendation 

was approved and on 14 August 1981 the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability.  He was issued a general discharge.

In 1983 the Army Discharge Review Board unanimously denied the applicant's petition to upgrade his discharge.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unsuitability.  It provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 in 1983, the year the Army Discharge Review Board completed their review.  The time for the applicant to file a request for correction of any error or injustice expired in 1986.

The application is dated 2 November 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

__jns___  ___emw__  ___jea__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999032961	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
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.	142.00	
2.		
3.		
4.		
5.		
6.