MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:   4 March 1999
	DOCKET NUMBER:   AR1999014563

	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. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		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 or general.  He states that the offenses of which he was charged and received nonjudicial punishment are considered minor.  He never realized the ramifications of a discharge from any of the military branches other than honorable would be as severe as it is.  In support of his request, he submits a VA administrative decision paper.

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 on 30 November 1971 and, after training, was assigned to Germany.

The applicant has a record of receiving nonjudicial punishment five times under Article 15, UCMJ:  on 12 June 1972 for being absent from his place of duty; on 
3 November 1972 for sitting on a truck while on guard duty; on 29 October 1973 for disobeying a lawful order; on 26 December 1973 for two specifications of disobeying a lawful order; and on 7 January 1974 for two specifications of breaking restriction.

During the period September 1973 to January 1974 the applicant received five formal counseling statements concerning indebtedness and poor duty performance.

On 18 March 1974 the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-200, chapter 13.  The applicant consulted with counsel and waived consideration by a board of officers. He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

On 1 April 1974 the separation authority, a major general, approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 25 April 1974 at Fort Dix, New Jersey.  He had 2 years, 4 months and 26 days of creditable service.

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 unfitness and unsuitability.  Paragraph 13-5 provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was 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 25 April 1974, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 April 1977.

The application is dated 18 March 1998 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999014563	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740425	
DISCHARGE AUTHORITY	AR635-200 CH13	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.