MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           15 March 2001                   
	DOCKET NUMBER:   AR2000043519

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. O’Shaughnessy		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 undesirable discharge (UD) be upgraded because he was told that his discharge would automatically be upgraded after 1 year.

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:

He enlisted in the Regular Army on 14 November 1968 for 3 years.  Following all required training, he was awarded military occupational specialty (MOS) 67P20, Helicopter Repairman and was assigned to Germany for his first permanent tour of duty.

The applicant accumulated five nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice for numerous acts of misconduct consisting of failures to repair, disobeying lawful orders, possessing habit forming drugs and absence without leave (AWOL).  He received two of the five NJPs prior to completing advance individual training and he received the other three shortly after arriving in Germany.

On 20 May 1970, the applicant departed his unit in Germany in an AWOL status and returned to military control in the continental United States on 14 July 1970.  Charges were preferred.  The applicant went AWOL on two more occasions 
(4 August – 16 November 1970 and 19-22 November 1970), and these charges were added to the original charges.  Following consultation with legal counsel, the applicant voluntarily, and in writing, requested discharge under the provisions of chapter 10, Army Regular 635-200, for the good of the service in lieu of trial by court-martial.  He did not submit a statement in his own behalf.

The appropriate authority approved the applicant’s request for discharge with an undesirable discharge.  Accordingly, on 30 April 1971 he was discharged after completing 2 years and 5 months of creditable military service and accruing 165 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 or DD Form 149 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.  His case was denied by the ADRB on 17 July 1978.

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 17 July 1978, the date his case was denied by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 17 July 1981.

The application is dated 22 June 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

__emw__  __rtd____  __teo____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043519	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710430	
DISCHARGE AUTHORITY	AR 635-200, C 10 	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.9500	
2.		
3.		
4.		
5.		
6.