MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            7 September 2000  
	DOCKET NUMBER:   AR1999034425

	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. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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 honorable with restoration of his VA rights and entitlement to separation pay.  In a self-authored statement the applicant indicates, in effect, that he was an outstanding soldier until he was notified in November 1970 that his father had died.  After that date he notes he “began to succumb to the influences of wide spread drug usage.”  He states that “either no consideration or inadequate concern was given to [his] medical and psychological condition….”

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 25 March 1970 and was assigned to Vietnam in July 1970.  While in Vietnam the applicant was punished six times under Article 15 of the Uniform Code of Military Justice (UCMJ), was convicted by one special court-
martial and was absent without leave (AWOL) for 9 days in December 1970.  In August 1971 the applicant was medically evacuated from Vietnam for drug abuse after having underwent detoxification in Vietnam just prior to his evacuation.  

Upon his return to the United States the applicant departed AWOL and was returned to military control in October 1971.  Prior to commencing 45 days of confinement, which resulted from his second court-martial conviction, the applicant again departed AWOL.  Between December 1971 and his discharge under other than honorable conditions in March 1980 the applicant accumulated several periods of AWOL, was apprehended by civilian authorities and charged with a variety of violations including theft, receiving stolen property, carrying a concealed weapon, etc.  He was ultimately convicted and confined by civilian authorities.  As a result of his conviction and confinement by civil authorities the applicant was administratively discharged under other than honorable conditions on 24 March 1980.

As of the date of the applicant’s application he was still incarcerated at the Indiana State Prison in Michigan City, Indiana.

In June 1981 the Army Discharge Review Board denied the applicant’s petition to upgrade his 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.  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 in June 1981, the date the Army Discharge Review Board completed their action.  The time for the applicant to file a request for correction of any error or injustice expired in June 1984.

The application is dated 29 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

__cla___  ____wtm_  ___tbr___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2999034425	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000907	
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.