MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           9 April 2002 
	DOCKET NUMBER:   AR2001063621

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Donald P. Hupman, Jr.		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 undesirable discharge be upgraded to general.  He states that he would like to be considered, “under the amnesty umbrella set forth by President Clinton for all Vietnam era military personnel who resisted the Vietnam War.”

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:

The applicant was granted a moral waiver and inducted on 31 August 1967.  He was 20 years old and had a ninth grade education.  He never completed training.

He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for absence from his appointed place of duty and two special court-martial convictions for extended absences without leave (AWOLs).

A psychiatric examination on 22 November 1968 produced a diagnoses of chronic, severe emotionally unstable personality manifested by depression, mood swings, heavy drug use, inability to tolerate frustration, irresponsibility and poor impulse control.  It  noted that the applicant might be suffering the long term effects of heavy LSD usage.  A 13 November 1969 psychiatric examination produced a diagnosis of chronic, severe inadequate personality manifested by repeated AWOLs, antisocial behavior, drug usage, faulty judgment, poor motivation, non-commitment to productive goals and lack of response to rehabilitative efforts.  In both cases he was considered mentally responsible, able to distinguish right from wrong and to adhere to the right.  He was considered to be able to understand and participate in the administrative separation process.  There were no disqualifying mental or physical defects requiring processing through medical channels.  Administrative separation was recommended.

He was processed for elimination (the separation package is not of record) and, on 15 December 1969, he was separated with a undesirable discharge under the provisions of Army Regulation 635-212.  He had 1 year and 3 months of creditable service and 375 days lost time due to AWOL and confinement.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, failure to pay just debts and drug abuse were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

There is no known “amnesty umbrella.” There is no policy or program that requires the automatic upgrading of any discharge.  

The law requires that, in the absence of evidence to the contrary, this Board must presume that the action taken was accomplished properly.

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 15 December 1969, the date of the discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 December 1972.

The application is dated 29 June 2001 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_RVO___  __RJW__  __DPH __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063621	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020409	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19691215	
DISCHARGE AUTHORITY	AR635-212 . . . . .  	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.