MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            19 October 2000                  
	DOCKET NUMBER:   AR2000039415

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest w. Lutz		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms Tracy L. Pinson		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.  The applicant states that he has been a model citizen and an asset to his community since his discharge

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 18 June 1980, he enlisted in the Regular Army for a period of 3 years.  He completed basic and advanced individual training at Fort Jackson, South Carolina, the remainder of this military time was spent at Fort Campbell, Kentucky and Fort Riley, Kansas.

He was promoted to pay grades E-2 and E-3 on 18 December 1980, and 1 April 1981, respectively.

In October 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful possession of marijuana.  His punishment was reduction to pay grade E-2, and a forfeiture.

On 20 April 1982, a general court-martial found the applicant guilty of larceny of stereo equipment and sentenced him to confinement at hard labor for 6 months, forfeiture, and reduction to pay grade E-1. 

On 8 July 1982, he accepted NJP, under the provisions of Article 15, UCMJ for disobeying a lawful order by having contraband (alcohol) in the unit.  His punishment was forfeiture, extra duty and restriction.

On 12 July 1982, his commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 5 (Expeditious Discharge Program).  He indicated that the reason for his proposed action was the applicant’s failure to meet minimum standards of conduct and performance for retention; and that despite counseling he had failed to develop into a satisfactory soldier. 

On 13 July 1982, the applicant acknowledged notification by his commander that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 5.  He declined to submit statements in his own behalf, and stated he understood the possible effects a general discharge could have in civilian life.
On 21 July 1982, the appropriate separation authority approved the applicant’s discharge under the above cited regulation and directed the issuance of a general discharge certificate.

On 23 July 1982, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) indicates he had 1 year, 11 months and 21 days of active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty, or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army’s Expeditious Discharge Program.

On 14 June 1983, the Army Discharge Review Board (ADRB) denied the applicants request to upgrade his discharge.

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 June 1983, the date the ADRB finalized their action.  The time for the applicant to file a request for correction of any error or injustice expired on 14 June 1986, 3 years after final action by the ADRB.

The application is dated 4 March 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

___ewl__  ___cjp___” ___trp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000039415	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
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.  142.0		
2.		
3.		
4.		
5.		
6.