MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           13 September 2001                 
	DOCKET NUMBER:   AR2000050272

	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. Antoinette Farley 		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Terry L. Placek		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 essence, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  The applicant dates the discovery of the alleged error or injustice as
17 November 2000. He claims that at the time of his discharge he was young and did not understand that he could have transferred out of his unit instead of requesting a chapter 10 discharge.  He further claims that he was never informed of this option.  He provides no additional information in support of his case.

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 for a period of 3 years on 25 January 1980.  He completed basic combat training at Fort Knox, Kentucky and was transferred to Fort Benning, Georgia where he completed advanced individual training on 
24 April 1980.  He was then awarded military occupational specialty (MOS) 11C10 (Indirect Fire Infantryman) and was transferred to Fort Lewis, Washington for duty in his MOS.

The applicant was listed as being absent without leave (AWOL) on 19 August 1980, and again from 9-10 September 1980.  The applicant’s military record does not contain copies of his nonjudicial punishments but, during the discharge process, reference is made to his having received two or more, punishments under Article 15, Uniform Code of Military Justice.

On 15 October 1980, the applicant was again listed as AWOL and dropped from the rolls as a deserter on 14 November 1980.  

On 6 June 1981, he was apprehended by civilian authorities and returned to military control and held at the Personnel Control Facility, Fort Ord, California.  

On 1 July 1981, he was charged with violation of Article 86, of the Uniform Code of Military Justice, for being AWOL. 

On the same day the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial.  His request acknowledged that he had been advised that the charges against him could lead to an under other than honorable (UOTHC) discharge and that he was guilty of such a charge.  He also acknowledged that he understood the nature and consequences of the discharge, including that he might lose veterans benefits.  His chain of command recommended approval.  On 2 July 1981, he was placed on excess leave pending his discharge. 

On 4 November 1981, the separation authority approved his request and directed a UOTHC discharge.  On 4 December 1981, he was discharged, under the provision of chapter 10, Army Regulation 635-200.  He had completed 1 year, months and 11 days of creditable service, 156 days of excess leave and 
236 days lost time.  The highest rank he attained was pay grade E-1.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

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 4 December 1981, the date he was discharged from active duty and signed his report of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 4 December 1984.

The application is dated 17 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.  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

_fne_____  __jed ___  __tlp____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050272	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010913	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981-12-04	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A63.02	
2.		
3.		
4.		
5.		
6.