MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            29 March 2001                  
	DOCKET NUMBER:   AR2000044601

	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. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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 court-martial conviction be stricken from his Official Military Personnel File; that his rank be restored to the highest grade held; and that he be retired from the Army.

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 21 June 1971 for 2 years.  Following completion of all required military training, the applicant was awarded military occupational specialty (MOS) 72C, Switchboard Operator and was assigned to the Republic of Vietnam as his permanent duty station.

He served there from 21 November 1971 to 8 June 1972 with fair to excellent efficiency ratings and fair to good conduct.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of military Justice on three separate occasions.  The misconduct consisted of failures to go to his appointed place of duty, disobeying a lawful order, and being absent without leave (AWOL).  On 5 June 1972, he was reassigned to Fort George G. Meade, Maryland.

On 10 October 1972, the applicant accepted another NJP for being AWOL.

On 30 November 1972, the applicant was convicted by a special court-martial for breaking restriction, failure to repair, and being AWOL on three separate occasions. His punishment consisted of confinement at hard labor for 3 months and forfeiture of $75.00 pay per month for 3 months.  He was confined at the United States Army Retraining Brigade, Fort Riley, Kansas.

On 29 March 1973, his commanding officer notified him of his intent to separate him from the Army under the provisions of chapter 13-5, Army Regulation 635-200 for unsuitability.  

On 29 March 1973, having been advised of his rights by legal counsel, the applicant authenticated a statement with his initials and signature in which he acknowledged notification, waived consideration of his case by a board of officers, and declined to submit statements in his own behalf.

It was noted in the commander’s recommendation for discharge that the applicant had been referred to the unit social worker and staff psychiatrist.  Both of them identified the applicant as exhibiting a character and behavior disorder manifested by overriding immaturity, lack of impulse control and a basic inability to respond to instructions.  They further noted that this diagnosis was consistent with the applicant’s behavior pattern and it was concluded that further efforts to correct this disorder would not be successful.

On 29 March 1973, the appropriate authority approved the applicant’s separation from the Army with a general, under honorable condition discharge.  Accordingly, on 4 April 1973, the applicant was discharged after 1 year, 4 months, and 28 days of active military service.

On 10 December 1980, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 9 December 1981, the ADRB found that the applicant had been properly discharged and denied his request for an upgrade of his discharge. 

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established the policy and prescribed the procedures for separating individuals for unfitness or unsuitability. Paragraph 13-5b provided for the separation of individuals determined to be unsuitable by reason of character and behavior disorders, apathy, defective attitudes, alcoholism, homosexuality, or an inability to expend efforts constructively.  Commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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 10 December 1980, 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 10 December 1983.

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

__jns____  __le_____  __cjp ___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000044601	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010329	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19730404	
DISCHARGE AUTHORITY	AR 635-200 CH13  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.