MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 January 1999                  
	DOCKET NUMBER:   AC98-11331

	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. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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:  Presumably, that his discharge under other than honorable conditions (UOTHC) be upgraded. The applicant made no entries in Items 8, 9, or 10 of his application.  In Item 11 he wrote the date of discovery of the alleged error or injustice as 1981 and requested waiver of the 3-year statute by writing “6-yr perfect good prior service.”

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 27 February 1979, with prior active duty service from July 1974 to July 
1977, and 1 year and 7 months total prior inactive service, he was enlisted in the Regular Army in pay grade E-4 for a period of 4 years and subsequently served as a wheel vehicle mechanic.

On 13 August 1979 he was punished under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on three occasions.  The punishment included a reduction to pay grade E-3 which was suspended for 
180 days.

On 31 August 1979 the suspension of punishment was vacated.

On 1 October 1979 his commander determined that he was AWOL.

On 31 October 1979 he was dropped from the rolls of his unit as a deserter.

On 5 November 1979 he was returned to military control.

On 16 November 1979, after being counseled by a military lawyer, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

On 11 December 1979 his request was approved by the convening authority who directed that he be discharged UOTHC.

On 9 January 1980, having served 9 months and 9 days of his 4-year term of enlistment, he was discharged.

On 14 December 1981 his request for an upgrade of his discharge was unanimously denied by the Army Discharge Review Board (ADRB).

The Manual for Courts-Martial, Appendix 12, shows that the maximum punishment for an individual who is convicted of being absent without authority from his or her unit for more than 30 days is a bad conduct discharge, confinement for 1 year, and forfeiture of all pay and allowances.

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 UOTHC 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 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 14 December 1981, the date of final denial by the ADRB .  The time for the applicant to file a request for correction of any error or injustice expired on 14 December 1984.

The application is dated 29 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

JH_____  RWG____  DSJ_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-11331	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 January 20	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800109	
DISCHARGE AUTHORITY	AR .635-200, CHAP 10	
DISCHARGE REASON	GD OF THE SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.