MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 October 1998                                    
	DOCKET NUMBER:   AC97-09821

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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 under honorable conditions.  He submits no issues in support of his application.

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 reenlisted on 16 January 1975 after completing 2 years, 4 months, and 24 days of his initial 4 year enlistment without a record of indiscipline.  He had been trained as an infantryman and was promoted to pay grade E5 effective 15 September 1975.

From March 1976 to January 1977 he was punished under Article 15, UCMJ five times for AWOL and failure to go.  He was AWOL again from 8 March to 14 June 1977 when he surrendered to military authorities.  On 24 June 1977 charges were preferred for the AWOL offense.

On 27 June 1977, after consulting with counsel the applicant requested discharge for the good of the service in lieu of trial by court-martial.  In his request he acknowledged that he was guilty of the offense and the punishment he might receive as a result of conviction by court-martial.  He also acknowledged that he might be ineligible for many or all Army and VA benefits as a result of the undesirable discharge he might receive.

In a statement on his behalf the applicant wrote that he was having a problem getting reclassified into a different military skill and that his wife had left him and he needed to take care of his children who had been left with his Mother.  He felt that both he and the Army would be better off if he was discharged.

The separation authority, a major general, approved his request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.  Effective 12 August 1977 he was discharged under the provisions of Army Regulation 635-200, chapter 10 under other than honorable conditions.  He had 2 years, 3 months, and 18 days creditable service and 101 days lost time.

In January 1979 he applied to the Army Discharge Review Board (ADRB) for a discharge upgrade.  On 3 December 1980 the ADRB, in a unanimous decision, denied his request.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 3 December 1980, the date of the ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 2 December 1983.

The application is dated 6 March 1997 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

JNS_____  EMW_____  RWG_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director