MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9710247

	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.  The following members, a quorum, were present:

	Mr.			Chairperson	
	Mr.			Member	
	Mr.			Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
				Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 he 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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.   In effect he states that he needs an upgrade to receive Veterans benefits.  The applicant also submits a statement of contentions regarding his good conduct, and unfairness of his discharge.

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 was enlisted in the Regular Army on 23 March 1976 for 4 years.  On 
10 March 1980 he was discharged for the good of the service.

During his service he received nonjudicial punishment under Article 15, UCMJ, on four occasions for 146 days AWOL , and other misconduct including disobeying lawful orders, and a special court-martial conviction for misconduct.

He was twice apprehended by military authorities from a deserter status.

Court-martial charges were preferred against him for consistent AWOL.

On 4 February 1980 he requested and received approval for discharge for the good of the service to avoid trial by court-martial.  He acknowledged he understood he may be discharged under other than honorable conditions.  He also acknowledged he understood as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, ineligible for many or all benefits administered by the VA and may be deprived of his rights and benefits as a veteran under both Federal and State law.

On 29 February 1980 his discharge was approved under UOTHC and he was reduced in pay grade private E-1, under the provisions of Army Regulation (AR) 635-200, chapter 10.

On 4 March 1988 the Army Discharge Review Board (ADRB) denied his request for an upgrade.  ADRB officials determined that “after consideration of your military records and all other evidence, has determined that you were properly and equitably discharged.  Accordingly, the Secretary of the Army has directed that you be advised that your request for a change in the character and/or reason of your discharge has been denied.”

AR 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 changes 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 4 March 1988, the date of the ADRB denial of his upgrade petition.  The time for the applicant to file a request for correction of any error or injustice expired on 4 March 1991.

The application is dated 1 August 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director