MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  19 September 2000
	DOCKET NUMBER:  AR2000040468

	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. Hubert O. Fry		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. John P. Infante		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 his characterization of service was honorable.  He further states, in effect, that he was a model soldier and was totally set up because the command wanted to make an example of an Air Traffic Controller (ATC). 

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 on active duty for 2 years, 11 months and 28 days, he reenlisted for ATC Tower Operator School.  Upon completion of his required training, he was awarded military occupational specialty (MOS) 93H (ATC Tower Operator).  He was advanced to pay grade E-4.

On 16 February 1983, while assigned to a unit in Korea, he was flagged for investigation for suspicion of possession and sale of a controlled substance. 

On 21 June 1983, he was convicted by a General Court-Martial for the wrongful possession, use and distribution of methamphetamine on 6 January 1983 and possession and distribution of methamphetamine on 2 February 1983.  His sentence included a forfeiture of $573 pay per month for 12 months, confinement at hard labor for 12 months, discharge with a Bad Conduct Discharge (BCD) and reduction to pay grade E-1.

During the period 21 June 1983 to 23 February 1984, he was imprisoned at Fort Riley, Kansas.

On 24 February 1984, he was placed on excess leave pending his appellate review.  He subsequently served 153 days in excess leave status.

On 27 March 1984, the US Army Court of Military Review approved findings of guilty and affirmed the sentence.

On 25 July 1984, he was discharged, in pay grade E-1, and issued a BCD under Army Regulation 635-200, chapter 3, based on a result of court-martial. His separation document indicates he had a total of 5 years, 9 months and 24 days of creditable service and 240 days of lost time.

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.  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 25 July 1984, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 25 July 1987.

The application is undated but was received on 20 April 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:

__hf___  __rs____  ___ji____ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040468	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000919	
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	BSD Upgrade	
2.		
3.		
4.		
5.		
6.