MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 February 2001
	DOCKET NUMBER:  AR2000049067

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		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: That his undesirable discharge (UD) be upgraded to a general discharge under honorable conditions.  He states that his superior officers were unjust and that he was involved in an automobile accident in which a person died.

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 June 1971, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 13A (Field Artillery Basic).  He was advanced to pay grade E-3 effective 7 December 1971.

During the period 18 November 1971 to approximately 20 March 1973, he was assigned to a unit in Germany.

Medical records show that on 28 December 1971, he complained of and was treated for upper lumbar pain because he was “allegedly involved in ¾ ton accident late 27 Dec 71 near Forchein Ger…”.   There is no evidence in the available records that a death occurred.  

On 11 January 1972, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for the period 3 to 6 January 1972.  His punishment included a reduction to pay grade  E-2, restriction and extra duty.

During the period 13 through 29 September 1972, he was hospitalized and treated for serum hepatitis and drug abuse (multiple).

On 9 January 1973, his commander preferred court-martial charges against him, for his failure to obey lawful commands on 28 and 29 December 1972, and on   2, 3, 4 and 8 January 1973, and, for being absent from his place of duty on         8 January 1973.  He was advised of his rights.

On 13 February 1973, after consulting with legal counsel, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he could receive a UD, that he was guilty, and that he understood the effects of receiving such a discharge.

On 21 February 1973, a physical examination cleared the applicant for separation.

On 8 March 1973, the appropriate separation authority approved his request and directed he receive a UD and that he be reduced to the lowest enlisted pay grade.

On 20 March 1973, he was separated with a UD under the above-cited regulation.  His separation document indicates he had 1 year, 9 months and     15 days of creditable service and 5 days of lost time.  He was authorized the National Defense Service Medal.

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 UOTHC discharge with the issuance of an Undesirable Discharge Certificate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  Failure to file within 3 years may be excused by a correction board if 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 20 March 1973, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 20 March 1976.

The application is dated 12 October 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

__js___  __ra______  ___mm___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049067	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
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	UD to GD	
2.		
3.		
4.		
5.		
6.