MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  29 August 2000
	DOCKET NUMBER:  AR1999034537

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Charles Gainer		Member	
	Mr. Roger W. Able		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 general discharge be upgraded to fully honorable.  He states that he was having emotional problems but his command could not help him.  With the right guidance he would have been able to complete his service.

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 16 February 1982.  After completion of training as a signal equipment repairer he was assigned to Korea.  He was never promoted above the pay grade of E-2.  On 29 September 1982 the military police apprehended the applicant for possession of marijuana.  On 24 November 1982 he was punished under Article 15, UCMJ for selling duty-free goods to unauthorized personnel.  From November 1982 through April 1983 he received several counseling statements for substandard duty performance.

On 28 April 1983 a medical examination found him to be qualified for separation with a physical profile of 1.1.1.2.1.1.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good. There was no significant mental illness.  The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.

From January to May 1983 he was AWOL on seven separate occasions for a total of 48 days.  On 23 May 1983 he was punished under Article 15, UCMJ for the offense of AWOL.

The applicant was notified on 8 June 1983 of the commander’s intent to recommend him for elimination for unsatisfactory performance and conduct.  After consulting with counsel, the applicant waived his right to submit statements in his own behalf.  He also acknowledged that he may encounter prejudice in civilian life if issued a general discharge.  The separation authority approved the request for separation and directed discharge under honorable conditions.

Effective 22 June 1983 the applicant was separated under the authority of Army Regulation 635-200, chapter 13.  He had 1 year, 2 months, and 19 days creditable service and 48 days lost time.  He was issued a general 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 unsatisfactory performance.  Paragraph 13-2 provided for the separation when, in the commander’s judgment, the soldier will not develop to become a satisfactory soldier and the ability of the soldier to perform effectively in the future is unlikely.

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 22 June 1983, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 22 June 1986.

The application is dated 20 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

__jm__  __cg____  __ra___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999034537	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000829	
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.  110.02	Reason and Authority	
2.		
3.		
4.		
5.		
6.