MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  3 August 2000
	DOCKET NUMBER:  AR2000040126

	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. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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 the characterization of his discharge be upgraded to honorable.  He states that he believes his offense being tried under a court-martial of any degree was not warranted and that he went AWOL (absent without leave) to get married after being denied a pass and returned to his unit after he accomplished that mission.  He indicates he had applied for a pass three days prior to the actual date of the wedding.  He feels that his AWOL was not for any reason related to the military - that he was not trying to neglect his duty or responsibility and his unit could have gotten him at any time.  Further, he indicates that his battalion commander advised him that his discharge would be upgraded in five years.  He provides five letters of support.

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:

After serving for 4 years, 8 months and 7 days on active duty, he reenlisted for   3 years on 10 March 1955.

During the period 6 August 1956 to 4 April 1957, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for misconduct and for being AWOL.

On 11 January 1957, he was convicted by a Summary Court-Martial for being AWOL from 7 to 9 January 1957.

On 6 September 1957, he was convicted by a Special Court-Martial for being AWOL from 14 to 30 August 1957.

In sum, he had 3 periods of AWOL for 19 days and 3 periods of confinement for 172 days for a total of 191 days of lost time.

On 23 April 1957, he was notified to appear before a board of officers to determine if he was to be retained on active duty and provided legal counsel.  The board recommended he be discharged under other than honorable conditions (UOTHC) and issued an Undesirable Discharge Certificate (UDC) under Army Regulation 635-208 for undesirable habits or traits of character.

On 29 April 1957, the appropriate separation authority approved the board’s recommendation and directed his reduction to the lowest enlisted grade and UOTHC discharge with issuance of an UDC.

On 2 May 1957, he was discharged UOTHC in pay grade E-1 and issued an UDC under the above cited regulation.  His DD Form 214 indicates he had          6 years, 3 months and 21 days of creditable service and 191 days of lost time.

On 3 December 1982, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for upgrade.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier. When separation for unfitness was warranted, a UD was normally issued.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 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.  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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 December 1982, the date the ADRB denied his request for upgrade.  The time for the applicant to file a request for correction of any error or injustice expired on 3 December 1985.

The application is dated 21 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

__js______  __cf____  ___ec___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040126	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
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	UP Discharge	
2.		
3.		
4.		
5.		
6.