MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            27 April 2000 
	DOCKET NUMBER:   AR1999033840

	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:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 1974 undesirable discharge be upgraded to a general discharge in order to obtain VA benefits.  He states that he was misled by legal assistance officers, was harassed by his company commander and NCO's, was racially discriminated against and was subjected to a "systematic targeting of non-conforming young black males."  He submits no evidence 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 enlisted and entered active duty on 5 October 1972.  While he successfully completed basic training his conduct and efficiency ratings were noted to be unsatisfactory.  In December 1972 he was transferred to Fort Hood, Texas for on the job training as an infantryman.

In March 1973 he received punishment under Article 15 of the UCMJ for failing to go to his appointed place of duty.  He was AWOL for 4 days between 15 and 
18 March 1973 and in October 1973 he was placed in pre-trail confinement and ultimately convicted by a special court-martial of being disrespectful to an NCO.

In February 1974, after charges were preferred for failure to repair, AWOL, escaping custody and breaking restriction, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

His request was approved and on 26 March 1974 the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge.

On 21 January 1975 the applicant was allowed to reenlist in the Army by concealing his previous undesirable discharge.  He responded "no" to a question concerning whether he had "been discharged from previous service under other than honorable conditions" on his DA Form 3286 (statements for enlistment).  

On 14 March 1975, while undergoing basic training at Fort Polk, Louisiana, the applicant's commander recommended the applicant be separated from the service for unsuitability.  The commander noted the applicant had been punished under Article 15 of the UCMJ for disrespect while at the reception station and that "disrespect for his superiors is common and he cannot get along with his peers." The commander noted the applicant had been "counseled by every level of command in this training company with negative results."

The recommendation was approved and on 23 March 1975 the applicant was discharged under honorable conditions.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

In February 1975 and July 1979 the Army Discharge Review Board unanimously denied the applicant's petition to upgrade his 1974 discharge.

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 July 1979, the date the Army Discharge Review Board completed their second review of the applicant's petition to upgrade his 1974 discharge.  The time for the applicant to file a request for correction of any error or injustice expired in July 1982.

The application is dated 29 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

___eb___  ___tap__  ___klw__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999033840	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
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.