MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            3 August 2000     
	DOCKET NUMBER:   AR1999034738

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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 under other than honorable conditions discharge be upgraded.  He makes no statement on his application but does submit a letter from the VA indicating that he is not entitled to benefits because of the character of his discharge.  He also noted in a 1999 DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) that he served honorably in Vietnam and just could not adjust to the military once he returned to the United States.

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 15 August 1967.  He served in Vietnam between January 1968 and January 1969.  In February 1969 he was assigned to Fort Hood, Texas.  While at Fort Hood he was punished on three separate occasions under Article 15 of the Uniform Code of Military Justice (UCMJ) and convicted by one special court-martial.

On 4 September 1969 the applicant commenced a series of Absent Without Leave (AWOL) periods which culminated with his return to military control in August 1970.  Although documents associated with his administrative separation were not in records available to the Board, the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he was discharged under other than honorable conditions on 31 August 1970 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

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.  

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 31 August 1970, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 31 August 1973.

The application was postmarked on 11 December 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

__cmf___  ____jns_  __esc___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999034738	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
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.