MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 February 2001                             
	DOCKET NUMBER:   AR2000050400

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 be upgraded to honorable.  He states that, since discharge, he has been employed and has conducted his life according to the highest standards.  He has learned his lesson from the wrong that he committed in the service and from the discharge that he accepted to get out of trouble.

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 12 April 1971 the applicant, at the age of 20 years and with a 9th grade education, enlisted in the Regular Army.  Notwithstanding a 31 August 1971 nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, the applicant completed training and was advanced to pay grade E-4.  He was convicted by a special court-martial of absence without leave (AWOL) from 8 August to 3 December 1972.  He received another NJP for AWOL from 14 to 24 February 1973.  He was AWOL again on 2 April 1973 and was apprehended on 3 January 1974.  On 18 January 1974 the applicant consulted with counsel and voluntarily requested discharge for the good of the service to avoid trial by court-martial for AWOL totaling 259 days.  His request acknowledged the nature and consequences of the undesirable discharge that he might receive, including that he would forfeit veterans benefits under state and federal law and that he could expect to encounter substantial prejudice in civilian life as the result of this discharge.  The separation authority approved his request and directed the issuance of an Undesirable Discharge Certificate.  On 14 March 1974 the applicant was separated under the provisions of Army Regulation 635-200, paragraph 10.  He had 1 year, 8 months and 25 days of creditable service and 432 days lost time.

Army Regulation 635-200, paragraph 10 provided that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could 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 was normally considered appropriate.  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.  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.

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 12 April 1974, the date of the discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 12 April 1977.

The application is dated 9 September 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

__RVO__  _WTM___  __TL  ___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050400	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740412	
DISCHARGE AUTHORITY	AR 635-200, para 10. . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.	A70.00	
3.		
4.		
5.		
6.