MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 1999   
	DOCKET NUMBER:   AR1999019566

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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 discharge under other than honorable conditions be upgraded to general or honorable.    

The applicant states that he was discharged for the good of the service.  He was AWOL for 120 days.  He was told that he had too many records of nonjudicial punishment and could not reenlist in order to retire with 20 years of service.

He states that he had not applied to have his discharge upgraded, that he did not have counsel, that he did not resign in lieu of court-martial, and was not advised by a lawyer.  He states that he was not notified in writing of the charges against him. 

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:

The applicant was inducted into the Army on 13 December 1967, served in Vietnam for one year, was wounded in action, receiving the Purple Heart, among other medals.  He was released from active duty and transferred to the Army Reserve Control Group in St. Louis on 12 December 1969 with the rank of Sergeant.  His service was honorable.

He reenlisted for four years in 1971 and again reenlisted on 20 June 1975 for six years.  On 6 October 1975 he received nonjudicial punishment under Article 15, UCMJ, for leaving his place of duty without proper authority.

The applicant attained the rank of Staff Sergeant and on 18 September 1978 he  reenlisted for six years.  

On 10 December 1981 the applicant received nonjudicial punishment for dereliction of duty and was reduced to Sergeant E-5.  On 13 July 1982 and again on 27 October 1982 he received nonjudicial punishment for failure to go to his place of duty.

The applicant had periods of AWOL from 24 December through                         27 December 1981, from 27 January to 1 February 1983, and from                       4 February through 18 July 1983 for a total of 176 days. 

On 27 July 1983 the applicant consulted with counsel and voluntarily requested 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 stated that he was guilty of the chargers against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation, and had no desire to perform further military service.  He stated that he understood the nature and the consequences of the under other than honorable discharge that he might receive.  He did not submit statements in his own behalf.

On 4 August 1983 the separation authority approved his request.  He was discharged under other than honorable conditions on 15 August 1983 at Fort Ord, California.  He had 13 years and 7 months of service and 176 days of lost time.

On 18 May 1989 the Army Discharge Review Board, in an unanimous decision, denied the applicant’s request to upgrade 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 18 May 1989, the date the Army Discharge Review Board denied his request.  The time for the applicant to file a request for correction of any error or injustice expired on 18 May 1992.

The application is dated 27 September 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

___inw__  ____vbc_  ___cjs__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019566	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990211	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2. 110.00		
3.		
4.		
5.		
6.