MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 July 2002                   
	DOCKET NUMBER:   AR2001064041

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms Jennifer L. Prater		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Gail J. Wire		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 Bad Conduct Discharge (BCD) be corrected to a medical retirement.  The applicant states that while on active duty, he was treated for migraine headaches, dizzy spells, and lapses of memory.  When he was diagnosed as having sinus problems, he was given a medication which caused him to become depressed and stressed out.  He also was mentally retarded and suffered from paranoid schizophrenia, mental illness, and bi-polar disorder; conditions which were not diagnosed until after he was discharged.  He turned to alcohol and illegal drugs to cope with life, which resulted in him firing a pistol in the air during a drunken stupor.

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 in the Regular Army on 27 October 1971.  At the time of his enlistment he was administered the Armed Forces Qualification Test (AFQT), in which he scored a 22, which made him a mental category IV, which was the next to lowest mental category which could be assigned.  He had completed three years of high school.  He was awarded the military occupational specialty of light weapons infantryman and was stationed in Alaska.

He accepted nonjudicial punishment (NJP) under Article 15, UCMJ, on six occasions, for failure to go at the time prescribed to his appointed place of duty (two specifications); for having in his possession two ounces of marijuana; for being absent without leave (AWOL) (three specifications); for missing unit movement; for assaulting a fellow enlisted soldier; and for being out of uniform.

He was convicted by a special court-martial on 15 September 1974 of carrying a concealed firearm; of storing a loaded firearm in his room; of striking a fellow soldier with his foot; of discharging a firearm in a public place; of communicating a threat to a fellow enlisted soldier by telling him he would “pay $500.00 to have [the other soldier] killed if he [the applicant] went to jail” and “[The other soldier] might be found dead at any time;” and of communicating a threat to a fellow enlisted soldier by telling him “Remember, my boys will get you and kill you if I go to jail” and “I won’t be in jail long and I will get you when I get out.”

His sentence consisted of a BCD, confinement at hard labor for 5 months, forfeiture of $200.00 a month for 5 months, and reduction from pay grade E-2 to pay grade E-1.

The appropriate authority approved and executed the findings and sentence of the court-martial and the applicant was issued a BCD on 18 December 1975.  The applicant had 3 years, 8 months and 5 days of creditable service and 167 days of lost time.

Army Regulation 635-40, paragraph 4-1, provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.  

Army Regulation 635-40, paragraph 4-2 provides that a soldier may not be referred for, or continue disability processing if under sentence of dismissal or punitive discharge.  If the sentence is suspended the soldier’s case may be referred for disability processing.  A copy of the order suspending the sentence my be included in the soldier’s records.  If action is taken to vacate the suspension is started after the case is forwarded for disability processing, the physical evaluation board serving the area must be promptly notified to stop disability processing.

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 18 December 1975, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 December 1978.

The application is dated 7 November 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___gjw_____  ___hof  ____jlp__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064041	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020723	
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.	108.00	
2.		
3.		
4.		
5.		
6.