MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 August 1999              
	DOCKET NUMBER:   AR1999020748

	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. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		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, the applicant requests that his discharge under other than honorable conditions be upgraded to general or honorable.

He states that his military record was excellent, expect for one unfortunate mistake in judgment.  Also, the time he served in the Army as reflected in         item 12 of his DD Form 214, was 3 years and 9 months, while item 11 of that form only shows 3 years and 6 months.

He states that his commanding officer did not know him, and therefore did not know he was a good soldier.  All the charges were withdrawn.  He had no prior disciplinary action, and did not have a poor record, as evidenced by his awards of the Expert Infantryman Badge, the Good Conduct Medal, the Army Commendation Medal, and his promotion to Sergeant prior to three years of service.  The case was a morale factor, in which the Army still faces problems.  He requests that his discharge be upgraded so the can serve in the Reserves.  

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 enlisted in the Army for four years on 18 June 1980.  He completed training as an infantryman and was awarded the military occupational specialty of (MOS) 11B of an infantryman on 11 September 1980.  The applicant was assigned to an infantry battalion in Germany in September 1980.  He was awarded the Expert Infantryman Badge, the Army Commendation Medal for achievement, and the Good Conduct Medal.  In October 1982 he was promoted to Sergeant.

The applicant completed his tour in Germany, and in October 1993 was assigned to Fort Carson, Colorado.

On 8 February 1984 court-martial charges were preferred against the applicant for wrongfully and unlawfully making under lawful oath a false statement, and for wrongfully allowing a prisoner under his charge, to be unsupervised for a period of 12 hours, during which time the prisoner went to a motel for the purpose of having an unauthorized connubial visit with his wife, and wrongfully obtained and consumed alcoholic beverages. 

On 27 February 1984 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 acknowledged that he was guilty of charges against him which included an offense which authorized the imposition of a bad conduct or dishonorable discharge, i.e., false swearing.  He stated that he understood the nature and consequences of the under other than honorable discharge that he might receive.  He submitted a statement, in which he said that he was given permission by the lieutenant to do what he did, and he was scared and could not think.  He stated that he was a good soldier with an outstanding record, and felt that he should not have to be discharged in this way.  He felt he was given permission by the lieutenant.

On 15 March 1984 the separation authority approved the applicant’s request and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He was discharged on 28 March 1984.  The applicant had 3 years, 9 months, and 11 days of service.  Three years and 6 months of that service was as an infantryman, MOS 11B20, as reflected in item 11, of his       DD Form 214.  His reenlistment code on this form is RE-4. 

On 9 June 1988 the Army Discharge Review Board 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.

Army Regulation 601-210, then in effect, prescribes the eligibility criteria governing the enlistment of persons into the Regular Army and the Army Reserve and prescribes prior service reentry eligibility (RE) codes and states in pertinent part that Code RE-4 applies to persons separated from last period of service with a nonwaivable disqualification.  A discharge under conditions other than honorable is a nonwaivable disqualification for enlistment.

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 9 June 1988, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on            9 June 1991.

The application is dated 2 June 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

__slp___  ___sc_____  ___bje__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020748	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990826	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2. 110.00		
3.		
4.		
5.		
6.