MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:          6 January 1999         
	DOCKET NUMBER:   AC98-12838
				   AR1998012392

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		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 honorable.  He states that while in prison he discovered, after his service medical records were reviewed by the veteran’s club, that his back was broken while in the service.  He notes that instead of being hospitalized for his broken back he was placed in special training and “had to exercise all day” and could not stand the pain so went AWOL.  He states he was “given a bad discharge” after being captured and “tortured by being placed on a bench with [his] hands tied behind [his] back and handcuffed for 24 hours.”

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 enlisted and entered active duty on 3 August 1971.  On 17 August 1971, while undergoing basic training he reported to medical officials with complaints of lower back pain and painful arches.  He was referred to physical therapy.  On 19 August 1971 he was seen at the Mental Health Clinic “because he wants out of [the] Army.”  The applicant indicated that “can’t do PT, he says joined to be a man, now says he doesn’t care.”  The evaluating official indicated the applicant “could be okay with a lot of reassurance and good orientation” but that he may be a candidate for separation under the provisions of Army Regulation 635-212 for unsuitability.  The official recommended the applicant be returned to duty and “to wait a week or so prior to starting action to look for possible change.”

The applicant successfully completed basic training and received an accelerated advancement to pay grade E-2.  He was transferred to Fort Sill, Oklahoma for advanced individual training in October 1971 and on 31 October 1971 reported to medical authorities stating that he had fallen from the top bunk and that he “was in [a] motorcycle accident last night - says he got hit by car while doing 80 mph.”  X-rays of his back were within normal limits.  He was given a temporary profile and medication.

In February 1972 the applicant commenced a series of brief AWOL periods for which he was punished under Article 15 of the UCMJ and convicted by a special court-martial.  In March 1971 the applicant acknowledged receipt of a proposed local bar to reenlistment.  The applicant elected not to submit any statements on his own behalf and the local bar was approved on 6 March 1972.

On 27 March 1972, seven days after being released from confinement, the applicant again departed AWOL.  He returned to military control on 19 August 1972.  On 25 August 1972 he reported to medical officials complaining of back pain and stating that he had been in a “motorcycle accident 6 mo ago.”  An x-ray showed a compression fracture “T6-T7” and prescribed medication, heat, and “no KP till seen by orthopedics.”

When charges were preferred, as a result of the applicant’s AWOL period between March and August 1972, the applicant consulted with counsel and requested separation for the good of the service in lieu of trial by court-martial.  His separation physical examination found him medically qualified for separation with a physical profile of 1-1-1-1-1-1.

The separation authority, a major general, approved the request and directed that an undesirable discharge be issued.  On 21 September 1972 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had 7 months and 22 days creditable service and 180 days lost time.

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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

In 1975 and again on 24 August 1981 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.

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 24 August 1981, the date the Army Discharge Review Board last acted on his request for upgrade of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1984.

The application is dated 23 February 1998 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

__tdh___  ___lls_____  __cwb__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director