MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  13 June 2000
	DOCKET NUMBER:  AR2000038047

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John H. Kern		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 to show he was honorably discharged; that his name be spelled correctly on his DD Form 214; that his time in service (TIS) be corrected; that his education level be corrected; and, that his complete physical examination was not provided.  He indicates that his discharge was based on one incident in 7 years of service, with no other adverse action; that his discharge did not consider his awards and letters of recognition from 1979 to 1984; that since being out of the military, he has served his community by being on the volunteer fire department and honoring other veterans by attending military services; and that his spouse deserves to have him recognized as an honorable veteran who served his country in the U.S. and overseas for 7 years.

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 7 November 1978, he entered the delayed enlistment program (DEP) of the US Army Reserve and remained there until 27 December 1978.

On 28 December 1978, he enlisted in the Regular Army and remained until his discharge.  He completed his required training and was awarded MOS 94B (Food Service Specialist).  He was advanced to pay grade E-4, effective 28 November 1980.

On 18 January 1984, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for using marijuana between 26 November and 5 December 1983.  His punishment included a reduction to pay grade E-2, a forfeiture of $250 pay for 2 months (1 month suspended for 30 days), restriction and extra duty.

During the period 31 January to 19 March 1984, he was absent without leave (AWOL).  On 19 March 1984, he surrendered to military authorities at Ellsworth Air Force Base, South Dakota.

On 28 March 1984, after the commander preferred court-martial charges against him for being AWOL for the period 31 January to 19 March 1984, the applicant, with legal counsel, voluntarily requested discharge under Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

On 28 March 1984, the applicant requested and received excess leave to go home to await a decision on his request for discharge.
On 2 April 1984, the appropriate separation authority approved the discharge and directed that the applicant be issued a discharge under other than honorable conditions (UOTHC) and that he be reduced to the lowest enlisted grade. 

On 10 April 1984, he was discharged UOTHC under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 indicates he had 5 years, 1 month and 25 days of creditable service and 49 days of lost time.  He was entitled to award of the Good Conduct Medal, the Army Service Ribbon and the Overseas Service Ribbon.  His DD Form 214 also shows his name as being misspelled.

On 27 June 1984, a DD Form 215 was issued to the applicant that corrected the spelling of his name.

There is no record of his completion of a GED in the available records.

There is no record of his completion of a physical examination in the available records.  However, those records are normally transferred to the Department of Veterans Affairs and were not provided for this review.

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 10 April 1984, the date he was discharged under chapter 10, Army Regulation 635-200.  The time for the applicant to file a request for correction of any error or injustice expired on 10 April 1987.

The application is dated 19 February 2000 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

___eb___  __be____  ___jk___ CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000038047	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
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         1.110	TIS/Name/GED/PE	
2.		
3.		
4.		
5.		
6.