MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  13 March 2001
	DOCKET NUMBER:  AR2000049357

	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:

	Ms. June Hajjar		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Donald P. Hupman		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 records be corrected to show that he was honorably discharged.  He relates that a group of soldiers abused him physically by burning his face and tongue with cigarettes while he was assigned to the 5th Artillery Battalion, Fort Riley, Kansas.  He was transferred, but he was still scared to death.  His mental condition has not been the same since the episode of abuse, he is destitute and needs Veterans Administration medical and mental help.

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 available military records show:

During the period 4 February 1978 to 25 September 1979, he served in the Oklahoma Army National Guard (OKARNG).  During the period 19 March to     10 June 1978, he was on initial active duty for training.  He completed his required training and was awarded military occupational specialty 13B (Cannon Crewman).  He was advanced to pay grade E-2 effective 19 September 1978.

On 25 September 1979, he was ordered to involuntary active duty.

During the period 17 January to 3 April 1978; 7 April to 21 April 1978; and, 8 May to 8 July 1978 he was absent without leave (AWOL).

On 14 July 1978, while assigned to the Personnel Control Facility, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, his commander preferred court-martial charges against him for being AWOL for the above periods.

On 15 July 1980, while assigned to the Personnel Control Facility, Fort Sill, Oklahoma, 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 an undesirable discharge, that he was guilty, and that he understood the effects of receiving such a discharge.

On 31 July 1980, the appropriate separation authority approved his request and directed his reduction to the lowest enlisted grade.

On 3 September 1980, he was issued a general discharge, under honorable conditions.

In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or 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 forth good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge. 

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 3 September 1980, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 3 September 1983.

The application is dated 1 November 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

__jh___  __jm___  __dh______  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049357	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
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	Ch 10	
2.		
3.		
4.		
5.		
6.