MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 August 2001                  
	DOCKET NUMBER:   AR2000049261

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 under other than honorable conditions discharge (UOTHC) be upgraded to a general discharge under honorable conditions.  The applicant states that he abided by the rules and was unjustly accused.  He states that the delay in filing the request should be excused because the discharge is unfair.

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 entered active duty on 6 November 1980.  He completed basic training, advanced individual training and was awarded the military occupational specialty of P76W10 (Petroleum Supply Specialist).  

The applicant was charged of possession of drug paraphernalia and for possession and use of heroin.   On 8 June 1982, he consulted with a military lawyer and submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-20, chapter 10. His request acknowledged that he was guilty of an offense for which he could receive a punitive discharge and that he understood the nature and consequences of the UOTHC discharge that he might receive.  

On 10 June 1982 the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for two counts of being absent from his unit, three counts of being absent from his place of duty and one count of failure to go to his appointed place of duty.  All six offenses occurred prior to the drug-related charges. 

The discharge authority accepted the applicant’s Chapter 10 request and directed that an under other than honorable discharge be issued.  He was discharged 27 August 1982.

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.

The Uniform Code of Military Justice, Table of Maximum Punishments shows that, at the time of the applicant’s discharge, a punitive discharge was authorized for the possession or use of heroin.

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 27 August 1982, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 August 1985.

The application is dated 13 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS __  ___RTD_  ___DPH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049261	
SUFFIX		
RECON	 	
DATE BOARDED	20010828 	
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.	A92.25	
2.	A92.31	
3.		
4.		
5.		
6.