MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  12 September 2000
	DOCKET NUMBER:  AR2000039692

	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:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Carol J. Suiter		Member	
	Mr. Fred N. Eichorn		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 that he was discharged on 12 September 1974 as a result of physical disability with an honorable characterization of service.  Further, he contends he was not given a debriefing or instructions to help his readjustment upon his return to the United States from Vietnam.  He requests he be reimbursed for all his “P.T.S.O.” (sic) hospital treatments and therapy programs over the last 30 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:

During the period 19 February to 18 October 1968, he served on active duty for  8 months and was honorably separated.  He completed his required training and was awarded military occupational specialty 67N (Single Rotor Turbine Helicopter Mechanic).  He was advanced to pay grade E-3.

On 19 October 1968, he reenlisted in the Army, in pay grade E-3.  (His DD Form 214 erroneously shows reenlistment on 19 October 1969 and should be administratively corrected).

On 15 August 1974, his unit commander preferred charges against him for being absent without leave for the period 1 April 1971 to 1 August 1974.

On 15 August 1974, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation    635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

On 22 August 1974, a physical examination cleared the applicant for separation.

On 12 September 1974, he was discharged, in pay grade E-1, under the above-cited regulation.  His separation documents indicates he had 3 years, 1 month and 28 days of creditable service and 1,241 days of lost time.

On 27 April 1983, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for an upgrade.

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 ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185), 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.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10, of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOTHC discharge with the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 27 April 1983, the date he was denied an upgrade by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 27 April 1986.

The application is dated 14 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.

NOTE:  The Commander, Army Reserve Personnel Command is requested to take appropriate action to make appropriate correction to the applicant’s DD Form 214, dated 12 September 1974 to show he entered that period of active service on 19 October 1968 vice 1969.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

__cf____  ___cs_____  __fe____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000039692	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000912	
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         1.110	Ch 10	
2.		
3.		
4.		
5.		
6.