MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 February 2001                  
	DOCKET NUMBER:   AR2000043972

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson 		Member	
	Mr. Melvin H. Meyer		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:  In effect, that his discharge under conditions other than honorable be upgraded to a general discharge.

The applicant states that his discharge was illegal, that he was not afforded due process, never appeared before a board, offered counsel or legal assistance.  He lost pay as a result of his periods of AWOL; and consequently his discharge based on his periods of AWOL constituted double jeopardy.  Furthermore, his AWOL periods were less than 30 days, and he was not apprehended [but turned himself in]; therefore, his discharge should not have been under other than honorable conditions.  He should have received a general discharge.  Even the Office of the Judge Advocate General agreed that he should not have received an undesirable discharge.  

The applicant cites constitutional law as a basis for upgrading his discharge.  He states that the type of discharge he received was disproportionate to his transgressions.  He states that he went AWOL because of his dissatisfaction while in the Army, and [his AWOL] was an attempt to force the Army to allow his release.  While in the stockade a general discharge was approved, but then disallowed.  The offer of a general discharge should have been reinstated.  The constitution requires equal protection under law.  Other soldiers in his unit went AWOL and received a general discharge.  He agreed to an undesirable discharge based on extreme duress after a year of failing to be released from the Army.  He suffers and has suffered from mental illness all his life, which caused him problems in adjusting to military life.  He did not deserve an undesirable discharge.  He has suffered because of his discharge.  He requests that his age at the time of his discharge be taken into consideration.     

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:

The applicant enlisted for four years on 12 October 1972 for a cash bonus and for assignment to the 3d Armored Cavalry Regiment after completion of basic training.  He was 19 years old.

He was assigned to Fort Ord, California for basic training.  While at Fort Ord he was AWOL from 21 October to 24 October 1972, for which he received nonjudicial punishment under Article 15, UCMJ.  In his appeal, the applicant stated that on the night that he left, the charge of quarters would not help him with his problem.  He stated that he could not function as a basic combat soldier, and that he was leaving [his unit] with or without permission.  His appeal was denied.  He completed basic training and was assigned to the 3d Armored Cavalry Regiment at Fort Bliss, Texas, in accordance with the provisions of his enlistment contract.

The applicant was AWOL from 26 February 1973 to 4 March 1973, for which he received nonjudicial punishment. 

A 28 March 1973 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that the applicant furnished for the examination he stated that his health was perfect. 

A 28 March 1973 mental status evaluation report indicates that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He had no significant mental illness and met the medical standards for retention in the Army. 

On 6 April 1973 the applicant was arraigned and tried before a summary court-martial and pled guilty to AWOL from 7 March 1973 to 26 March 1973.  

A 23 May 1973 letter from local board number 30 of the selective service system in Los Alamos, New Mexico, indicates that the applicant had been granted 1-A-O classification on 13 July 1972, that had he been inducted he would have been assigned to non-combat service due to his classification.  That letter continued by stating that inasmuch that the applicant voluntarily enlisted in the combat arms, he was not a true 1-A-O, and that the state headquarters opined that his enlistment was not erroneous inasmuch as the applicant voluntarily enlisted into the combat arms. 

On 14 June 1973 the applicant was arraigned and tried before a special court-martial and found not guilty of AWOL from 7 May 1973 to 16 May 1973.

On 11 July 1973 the applicant’s commanding officer notified the applicant that he was initiating discharge proceedings for elimination from the Army under the provisions of Army Regulation 635-200, paragraph 14-5g, concealment of his      1-A-O classification as indicated on his DA Form 3286, Part I, item k, which was located in his military personnel records jacket.  Item k states, “I am not conscientiously opposed, by reason of religious training or belief, to bearing arms or to participation in, or training for war in any form.”

The applicant consulted with counsel and acknowledged receipt of the elimination action, stated that he had been advised of the basis for the contemplated action, and requested consideration of his case by a board of officers.  He declined to submit statements in his own behalf.  His acknowledgement is dated 17 June 1973.

On 19 July 1973 the applicant’s commanding officer recommended to the separation authority that the applicant be eliminated from the Army for fraudulent entry.  He stated that the applicant was not motivated toward the service and was a constant disciplinary problem.  He stated that the applicant signed statements indicating that he realized he was enlisting for combat arms, but did not make known his 1-A-O classification.  He should be eliminated for fraudulently signing government forms and fraudulently enlisting into the service.

The applicant was AWOL from 13 August 1973 through 26 August 1973.

On 4 September 1973 the applicant completed another statement acknowledging receipt of elimination proceedings.  He stated that he consulted with counsel and had been advised of the basis for the contemplated action to accomplish his separation for fraudulent entry.  He waived consideration of his case by a board of officers and declined to submit statements in his own behalf.  He waived representation by counsel.  He stated that he understood the nature and consequences of the discharge under conditions other than honorable that he might receive.        

On 12 September 1973 the separation authority approved the recommendation to discharge the applicant for fraudulent entry.  He directed that the applicant be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 21 September 1973.

On 15 May 1980, the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s request to upgrade his discharge.

Army Regulation 635-200 provides the policy and procedures for separation of enlisted personnel.  Chapter 14 provides for separation for fraudulent entry and states in pertinent part that fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment, might have resulted in rejection.  Soldiers discharged for fraudulent entry may be issued an honorable discharge, a general discharge or discharge under other than honorable conditions as determined by the separation authority.  The character of service will be based on a soldier’s in service records and activities.

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 15 May 1980, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on          15 May 1983.

The application is dated 20 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

___fne___  ___mkp_  ___mhm_  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043972	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
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.  360	142.00	
2.	110.00	
3.		
4.		
5.		
6.