MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 24 JULY 2001
         DOCKET NUMBER: AR2001051940


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		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)

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APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

The applicant states that he was 17 years old and immature when he enlisted, had dropped out of school, hung around with a bad crowd, and grew up during the turbulent times of the sixties. He has now received a high school education, attended college, received a paralegal degree, worked hard, and has a great marriage. He requests that he be granted a discharge that he can be proud of.

The applicant submits a copy of a certificate showing that he completed the mobile electric power generation course on 15 September 1971; a copy of his high school equivalency diploma, issued in January 1984; and a copy of a document which he states shows that he served in the Auxiliary Police in Nassau County of New York.

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 enlisted in the Army for two years on 20 May 1971. He was 17 years old. He completed training and in December 1971 was assigned to a Chaparral/Vulcan Augmentation Holding Detachment at Fort Bliss, Texas.

On 18 January 1972 the applicant received nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military Justice) for leaving his place of duty. On 28 January 1972 he received nonjudicial punishment for failure to go to his place of duty.

The applicant was examined by a psychiatrist at William Beaumont General Hospital in El Paso on 31 January 1972. That official stated that the applicant was referred at the request of his unit, which indicated that the applicant had no interest in being a soldier, was constantly concerned about his mother's health, and whose whole goal was to return to his family. The applicant did not want to remain in the Army and had no interest in becoming a productive soldier. The psychiatrist opined that no amount of rehabilitation or counseling would make the applicant change his mind, and that he should be discharged as soon as possible. He stated that the applicant had an immature personality, and also stated that the applicant was mentally responsible, was able to distinguish right

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from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. The applicant had no disqualifying mental or physical defects that warranted disposition through medical channels.

On 31 January 1972 the applicant’s commanding officer recommended that the applicant be separated under the provisions of a 24 September 1971 DA message and Army Regulation 600-200, chapter 4, for failure to demonstrate adequate potential for promotion. He recommended that the applicant be furnished an Honorable Discharge Certificate. Enclosed with that recommendation is the commander’s certificate, in which he described his relationship with the applicant, his counseling attempts, and his actions in administering nonjudicial punishment. He indicated in this certificate that the applicant was unwilling to listen and impossible to counsel. He also stated that the applicant was too set in his ways, too uncooperative, and not at all rehabilitative in nature. He indicated that the applicant impressed him as being an immature adolescent who was afraid of being separated from his parents, and though not a chronic troublemaker, his manner of performance was barely acceptable. He stated that the applicant should continue to be denied promotion to pay grade E-3, and that he should be eliminated from the service due to failure to demonstrate adequate promotion potential.

Also attached to the recommendation was a statement from the assistant brigade chaplain, who stated that the applicant was obviously immature and should not be promoted. The chaplain recommended that he be eliminated from the Army.

Statements from the applicant’s first sergeant, field first sergeant, and supply sergeant all indicate that the applicant was immature and childish, that he disliked the Army and had been working to be discharged, and that he was unreliable, untrustworthy, and lazy.

On 31 January 1972 the applicant stated that he acknowledged that he had been counseled by this commanding officer on six occasions, and stated that he understood the impact of his failure to demonstrate the standards of conduct and ability required buy the Army.

On 8 February 1972 the applicant’s commanding officer indicated that the applicant’s conduct was “Good,” and his efficiency, “Fair.”

The applicant’s battalion commander endorsed the recommendation, as did the brigade commander, who recommended approval for separation under the

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qualitative management program, as extended. He recommended that the applicant receive an Honorable Discharge Certificate. The separation authority, the commanding general of Fort Bliss, approved the recommendation for separation on 23 February 1973, and directed that the applicant receive a General Discharge Certificate.

A 28 February 1972 report of medical examination indicates that the applicant was qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination, he stated that he was in good health and not using any medication.

The applicant was discharged on 3 March 1972. He had 9 months and 14 days of service.

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.

There is no evidence, nor has the applicant provided any, to indicate that his general discharge was in error or unjust and as such there is no basis to upgrade his discharge to honorable.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 March 1972, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 3 March 1975.

The application is dated 20 December 2000 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

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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

__JNS __ __MVT __ __WDP__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001051940
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010724
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.	110.00
3.	189
4.
5.
6.