MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            2 November 2000                  
	DOCKET NUMBER:   AR2000041748

	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. Fred N. Eichorn		Chairperson	
	Mr. William D. Barr		Member	
	Mr. Red S. Kanamine		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.  The applicant states that he was convicted of a felony 3 or 4 months before his discharge date; that the Army knew he was in prison, but waited until he served most of his 2 year sentence before discharging him, which is why he has so much absent without leave (AWOL) time; and that he served honorably while in Vietnam and hopes that will count in his favor. 

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 8 December 1965, he entered active duty from the Army National Guard, for a period of 2 years.  He served in Vietnam from 7 February 1966 to 
14 February 1967.

On 7 February 1967, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from      1 to 6 February 1967.  His punishment was a forfeiture.

On 14 September 1967, he was convicted by a special court-martial of being AWOL from 18 March to 25 July 1967.  His punishment was confinement at hard labor for 2 months and a forfeiture.

On 25 March 1968, he was convicted by a civil court of forgery, and sentenced to 2 years in prison.  

On 14 October 1968, he was notified that he was being recommended for separation under the provisions of Army Regulation 635-206, because of conviction by civil court.

On 14 October 1968, the applicant waived his rights to military counsel, to have his case presented before a board officers, and to submit statements in his own behalf.

On 24 February 1969, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206, because of conviction by civil court and directed that he be furnished an undesirable discharge.

On 3 March 1969, the applicant was discharged under the above cited regulation.  His DD Form 214 (Report of Transfer or Discharge) indicates he had 3 years and 25 days of creditable service, and 268 days of lost time. 

On 11 December 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which
the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was considered appropriate.

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     2-4), 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 11 December 1979, 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 11 December 1982.

The application is dated 10 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

__fne____  ___wdb__  __tsk___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000041748	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
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.  142.00		
2.		
3.		
4.		
5.		
6.