MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1998                   
	DOCKET NUMBER:   AC98-12608

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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:  In effect, that his undesirable discharge be upgraded to honorable.  He states that the discharge was unjust and he was not given the chance to reply to the charges.

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 29 November 1971.  The available records do not show whether the applicant completed his initial training prior to departing AWOL on 26 June 1972.  He remained AWOL until 9 April 1976 when he surrendered to the FBI.

On 12 April1976 charges were preferred for the AWOL offense with a recommendation of trial by a special court-martial empowered to adjudge a bad conduct discharge.  After consulting with counsel on 15 April 1976 the applicant requested discharge for the good of the service in lieu of trial by court-martial.  In his request he acknowledged that he was guilty of the offense charged that could result in a bad conduct discharge.  He acknowledged that he might be discharged under other than honorable conditions that might result in a loss of many or all Army and veterans benefits.  In a statement submitted in his own behalf the applicant stated that he had a wife with heart problems and his mother began to drink when his grandmother died.

On 11 May 1976 the convening authority, a major general, approved the request and directed separation with an undesirable discharge.  Effective 23 June 1976 the applicant was discharged under authority of Army Regulation 635-200, chapter 10 under conditions other than honorable.  He had 9 months and 12 days creditable service and 1,383 days lost time.

On 14 February 1977 the Army Discharge Review Board, in a unanimous decision, voted to deny the applicant an upgrade of his discharge.

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.

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 14 February 1977, the date of the denial by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 14 February 1980.

The application is dated 26 January 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

JH_____  FNE_____  TBR_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12608	
SUFFIX		
RECON		
DATE BOARDED	19981209	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19760623	
DISCHARGE AUTHORITY	AR .635-200,CH 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	142.01	
3.		
4.		
5.		
6.