MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        4 November 1998    
	DOCKET NUMBER:   AC98-07238

	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:

	Mr. James E. Vick		Chairperson	
	Mr. :Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 discharge to honorable.  He states that his career went down hill due to severe personal problems, his divorce and the loss of a minor child.

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 10 May 1977, he reenlisted in the Regular Army in the pay grade of E-4, for a period of 4 years.  

From August 1977 to April 1980, the applicant was stationed in Germany, as a custodial agent/senior security guard. 

On 6 November 1980, while stationed at Fort Stewart, Georgia, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for failure to go, on 6 October 1980, at the prescribed time to his appointed place of duty.  His punishment was forfeiture and restriction. 

On 23 January 1981, he accepted NJP under the provisions of Article 15, UCMJ, for failure to go to his appointed place of duty; and for being derelict in the performance of his duties by failing to supervise soldiers under his responsibility.
His punishment was forfeiture, restriction and reduction to pay grade E-4.

The applicant was absent without leave (AWOL) from 11-13 February 1981.

On 29 April 1981, his commander preferred court-martial charges against him for being AWOL from 23 February 1981 to 3 June 1981.

On 17 June 1981, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged that he was guilty of the charges against him; that he was advised of his rights; and that he understood the possible ramifications of receiving an under other than honorable conditions (UOTHC) discharge. 

On 21 July 1981, he was discharged with an UOTHC discharge, under the above cited regulation.  His Report of Separation indicates he had 3 years, 10 months and 29 days of creditable service with 103 days of lost time.

Army Regulation 635-200 sets for 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 submit a request for discharge 
for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after the charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  Failure to file within 3 years may be excused by a correction board if 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 21 July 1981, the date of the applicant’s discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 21 July 1984.

The application is dated 3 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

___JEV__  ___LLS__  ___TNK__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director