MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 04 SEPTEMBER 2003
         DOCKET NUMBER: AR2003086832


         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. Raymond V. O'Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Frank C. Jones II		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, the applicant requests that his discharge under other than honorable conditions be upgraded to general or honorable.

The applicant states that he disagrees with the finding in the 29 June 1993 letter. There is no such document available to this Board, nor is there a prior Board case on the applicant.

The applicant recounts his service, states that he was paralyzed in basic training, and was admitted to a hospital because he tried to commit suicide because he was in confinement for theft of a weapon, for which he was found not guilty. He spent 60 days in a tiger cage until he was found not guilty. Afterwards he was assigned as a flunky. He signed papers to get out of the service without any explanation on what they were. He could not read. There was no proof that he was AWOL (absent without leave). The VA (Department of Veterans Affairs) never made an appointment for him to see a physician; therefore it is impossible for them to determine if he had a medical condition. When he jumped off the building the VA stated that he was negligent; however, after being in a tiger cage and being harassed, anyone could have a mental problem.

He stated that his court-martial was for failure to repair; however, the reason his uniform was always dirty and torn was because he was always on detail. He was never assigned a job like others, but was a flunky for 18 months. He was initially charged with theft because he signed the guilty statement. He only had a second grade education, and they never informed him that his statement was going to be used in a court-martial. The VA was going to award him a service-connected disability without compensation. He was asked to sign a statement giving him medical benefits. However, he never signed it. The Houston office is discriminating against him because he would not sign the document. Had he signed it, he would not have medical benefits even if they were not service connected. He has yet to receive a medical evaluation. He was not provided a translator during his court-martial, even though he was illiterate. The VA is now doing the same thing. At the hearing there were no Spanish speaking persons. At the time of his enlistment he was determined medically fit to serve; however, the VA states that he had medical problems at the time of his enlistment.

---

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 inducted into the Army on 21 March 1962, completed basic combat training at Fort Chaffee, Arkansas, and in June 1962 was assigned to a missile battalion at Fort Bliss, Texas.

On 28 September 1962, before a summary court-martial which convened at Fort Bliss, the applicant was arraigned, tried, and pled guilty to two counts of AWOL. He was sentenced to restriction to his unit area for one month and to forfeit $50.00.

On 19 February 1963 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for violating a lawful general order, riding a motor scooter without a protective helmet.

On 28 June 1963, before a special court-martial which convened at Fort Bliss, the applicant was arraigned and tried for two counts of theft of private property and one count of theft of government property. He pled not guilty to all the charges and was found not guilty.

On 7 September 1963 he received nonjudicial punishment for improper wear of his uniform.

The applicant's DA Form 24 (Service Record) shows that he was assigned to five different units while stationed at Fort Bliss, with conduct and efficiency ratings of unknown at one unit, excellent at another unit, and unsatisfactory at the other three units. That form also shows that he had ten days of time lost from 27 August 1962 to 5 September 1962 and two days of time lost from 22 September 1962 to 23 September 1962.

The applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-208 on 22 November 1963. He had 1 year, 7 months, and 20 days of service, and 12 days of lost time. There are no available records concerning his discharge processing. The orders directing his discharge show that the reason for his discharge was his involvement in frequent incidents of a discreditable nature with military and civilian authorities.

---

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate. Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. 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.

Notwithstanding the lack of records concerning the processing of his discharge, there is no evidence, nor has the applicant provided any, to indicate that his discharge under other than honorable conditions was in error or unjust, and as such there is no basis to correct his record as he requests.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 22 November 1963, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 22 November 1966.

The application is dated 17 February 2003 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__ __BJE __ __FCJ __ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2003086832
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030904
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.	110.00
2.
3.
4.
5.
6.