MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  24 October 2000
	DOCKET NUMBER:  AR2000041367

	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. Margaret Patterson		Chairperson	
	Mr. John T. Meixell		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 his records be corrected to show he received a General Discharge Certificate in lieu of an Undesirable Discharge Certificate.  He contends he is now being treated for a mental illness that caused his behavior that led up to his discharge.  If he had gotten the proper medical treatment, the incidents would not have happened.  He’s only asking for an upgrade to general.

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 1 December 1970, he enlisted in the Army with parental consent and after he had given permission to the State of Missouri Board of Probation and Parole to provide information to the Army.  He completed his required training and was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  The applicant never served in that MOS.  He was advanced to private first class (pay grade E-3) effective 14 July 1971.

Between 29 October 1971 and 13 June 1972, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four occasions for his failure to go to his appointed place of duty, for being derelict in the performance of his duties and for showing disrespect to a noncommissioned officer.  His punishment included forfeitures, reductions to pay grades E-2 and  E-1 and restriction.

His commander preferred court martial charges against him for willfully disobeying a lawful order by a superior commissioned officer. 

After consulting with his legal counsel, he voluntarily requested discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he could receive an undesirable discharge, that he was guilty and that he understood the effects of receiving such a discharge.

On 9 August 1972, a physical examination cleared the applicant for separation with a 111111 physical profile.

On 14 September 1972, the appropriate separation authority approved his discharge and directed his characterization of service be undesirable.

On 26 September 1972, he was discharged, under the above-cited regulation.  His separation document indicates he had 1 year, 9 months and 20 days of creditable service.

On 5 February 1974, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for an upgrade.

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 of 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 undesirable discharge with the issuance of an Undesirable Discharge Certificate.

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 5 February 1974, the date the ADRB denied his request.  The time for the applicant to file a request for correction of any error or injustice expired on 5 February 1977.

The application is dated 21 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:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

__mp____  ___jm___  __ec____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000041367	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
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.