MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        28 October 1998       
	DOCKET NUMBER:   AC97-10378

	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	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Curtis W. Barbee, Jr.		Member	
	Mr. Raymond V. O’Connor, Jr.		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 records be corrected by upgrading his under other than honorable conditions (UOTHC) discharge to honorable.  He states that he is trying to get a small business loan; that he has done his time (3 years) at a prison in Germany; and was discharged UOTHC. 

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:

On 19 April 1977, he enlisted in the Regular Army for a period of 3 years.

On 25 July 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for stealing. His punishment was forfeiture.

On 11 April 1978, the applicant was convicted by a special court-martial for  stealing, 2 specifications; and for unlawfully entering the dining facility with intent to commit larceny, 2 specifications.  He was sentenced to confinement at hard labor for 30 days, forfeiture, and reduction to pay grade E-1.

On 17 July 1978, he accepted NJP under the provisions of Article 15, UCMJ, for willfully disobeying a superior noncommissioned officer.  His punishment was forfeiture.

On 27 November 1978, he accepted NJP under the provisions of Article 15, UCMJ, for being drunk while on duty on 12 October 1978, and for failure to go to his appointed place of duty on 13 October 1978.  His punishment was forfeiture and extra duty.  

On 21 May 1979, he was found guilty by a German civil court for armed robbery and assault with a deadly weapon.  He was sentenced to 3 years in prison.

On 29 October 1980, the applicant was release from prison after spending     254 days in confinement.

On 30 October 1980, his commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, chapter 14, for misconduct- conviction by civil court.

On 30 October 1980, a physical examination qualified the applicant for separation.

On 31 October 1980, a psychiatric evaluation cleared the applicant for separation.    

On 31 October 1980, the appropriate separation authority approved the applicant’s separation under the provisions of AR 635-200, chapter 14, and directed the issuance of an under other than honorable conditions discharge certificate.

On 3 November 1980, he was discharged with an UOTHC discharge, under the above cited regulation.  His Report of Separation indicates he had 1 year,          8 months and 20 days of creditable service with 389 days of lost time 

On 6 November 1981, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating  members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 6 November 1981, the date of final action by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 6 November 1984.  

The application is dated 6 June 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

___jhl__  ___cwb__  __rvo___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director