MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  27 February 2001
	DOCKET NUMBER:  AR2000050732

	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 honorable.  He indicates he was wounded in Vietnam, reassigned to Walter Reed Army Hospital and further to Fort Stewart, Georgia.  He relates that “They sent me home and they never contacted me again.”  Counsel indicates there was confusion as to where he was supposed to be and no one could tell him. He made an attempt to report to the proper organization and due to the confusion went home.  The stress and personal trauma due to his experiences in Vietnam could have affected his decision-making skills at this difficult time in his life.  

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 31 August 1962 to 28 February 1963, he served on his initial active duty for training as a member of the Army Reserve.  He completed his required training and was awarded military occupational specialty 940 (Cook).  He was discharged from the Army Reserve on 28 August 1963.

On 29 August 1963, he enlisted in the Army.  On 28 August 1966, he was honorably discharged.  He had completed 3 years creditable service.  He attained the rank of specialist six (SP6).

On 29 August 1966, he reenlisted in the Army.

On 25 February 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave for the period 19 to 23 February 1969.  There is no indication of the punishment he received.

On 17 June 1969, he accepted NJP under Article 15, UCMJ for disobeying a lawful directive by being apprehended in an off-limits area with his weapon.  There is no indication of the punishment he received.

On 15 April 1970, at 2130 hours, he was seriously injured by a gunshot wound while riding in a Vietnamese taxi that failed to stop at a police checkpoint.  The Vietnamese police fired repeatedly into the taxi, hitting the applicant.

On 24 April 1970, he was evacuated to Camp Zama, Japan for further transportation to Walter Reed Army Hospital, Washington, DC and subsequently to US Army Hospital, Fort Stewart, Georgia.

On 21 September 1970, he absented himself from Fort Stewart.

On 5 January 1977, he was apprehended and returned to military control.

On 20 January 1977, the Commander, Personnel Control Facility, Fort Sill, Oklahoma preferred court-martial charges against the applicant for desertion for the period 21 September 1970 to 5 January 1977.  He was advised of his rights.

On 21 January 1977, 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 31 January 1977, the appropriate approval authority approved his request and directed he be issued an under other than honorable conditions (UOTHC) discharge and that he be reduced to pay grade E-1.

On 7 February 1977, he was discharged UOTHC, in pay grade E-1, under the above cited regulation.  His separation document indicates he had 7 years,         2 months and 1 days of creditable service and 2,292 days of lost time.

On 1 May 1979, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for an upgrade.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 May 1979, the date the ADRB notified him of the denial of his request for upgrade of characterization of his service.  The time for the applicant to file a request for correction of any error or injustice expired on 1 May 1982.

The application is dated 18 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

__js__  ___ra_____  ___mm_____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050732	
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	Ch 10	
2.		
3.		
4.		
5.		
6.