MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 December 1998
	DOCKET NUMBER:   AC98-11261

	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:

	Ms.	Karen L. Wolff		Chairperson	
	Mr.	Melvin H. Meyer		Member	
	Mr.	Kenneth L. Wright		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Ed Clark		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 undesirable discharge be upgraded.  He states that at the time he was only 18 years old and did not think of the consequences, but now, at age 42, he would like his discharge upgraded for personal reasons.

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 5 October 1973.

On 12 March 1974 he was punished under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, a company formation.

On 15 April 1974 his commander determined that he was AWOL.

On 31 October 1974 he was apprehended by civil authorities and returned to military control.

On 25 November 1974 his commander determined that he was again AWOL.

On 3 December 1974 he was dropped from the rolls of his unit as a deserter.

On 14 December 1974 he was apprehended by civil authorities and returned to military control.

Documents related to his separation processing are not in the available records; however, his separation document, DD Form 214, shows that on 5 February 1975, with 7 months and 39 days total active service, and 252 days time lost, he was separated from active duty and issued an Undesirable Discharge Certificate under the provisions of Army Regulation 635-200, chapter 10.

On 27 May 1981 he was notified by the by the Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, Missouri, that his 
1977 application to the Army Discharge Review Board (ADRB) had not been processed because his records had not been available; that his records were now available; and that it would be necessary for him to submit another application.  He was provided an ADRB application at that time.  There is no indication that he submitted an application to the ADRB subsequent to that date. (A RCPAC memorandum for record dated 12 August 1981 shows that the applicant failed to respond within 14 days of the letter and that the case was closed at that 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 (dishonorable or bad conduct) 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.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable 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 27 May 1981, the date he was notified by the RCPAC that he would have to submit another application.  The time for the applicant to file a request for correction of any error or injustice expired on 
27 May 1984.

The application is dated 12 November 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

KLW____  MHM___  KLW____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-11261	
SUFFIX		
RECON		
DATE BOARDED	1998 December 17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	5 February 1975	
DISCHARGE AUTHORITY	AR635-200 .CHAPTER 10  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.