MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            14 August 2001
	DOCKET NUMBER:    AR2000050827

	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. Walter T. Morrison		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  The applicant dates the discovery of the alleged error or injustice as March 1985 and in essence states that his commanding officer told him that his discharge should become upgraded after 2 years.  He further relies on his military records in support of his claim.

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 United States Army Reserve on 15 October 1979 and entered Initial Active Duty for Training (IADT).  He completed training in military occupational specialty (MOS) 62E10 (Construction Equipment Operator).  On 5 April 1980, he was discharged from IADT with an HD and assigned to a reserve unit.  

On 22 July 1980, he enlisted in the Regular Army for a period of 4 years.  He was then assigned to Fort Riley, Kansas, for duty as a construction equipment operator. 

On 25 November 1980, he received a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 4 - 20 November 1980.  His punishment included forfeiture of $117.00 and restriction for 7 days.

On 4 March 1981, he received a second NJP for disobeying an lawful order on 
3 March 1981.  His punishment included reduction to pay grade E-1, restriction for 30 days and forfeiture of $200.00 pay per month for 2 months, suspended for 
90 days.

On 15 June 1982, he was convicted by a summary court-martial of two specifications during the month of March 1982, for purchasing in excess of the monthly limitation on certain merchandise and for purchasing merchandise in excess of the monthly dollar limitation.  His approved sentence included forfeiture of $372.00 pay for one month, and restriction. 

On 15 April 1982, he received his third NJP for failing to go to his appointed place of duty on 7 and 8 April 1982.  His punishment included restriction and extra duty for 2 weeks and forfeiture of $100.00 pay per month for 1 month and reduction to pay grade E-2, suspended for 90 days.

On 4 May 1982, he received his fourth NJP for taking pass privileges when not authorized and failing to go to his appointed place of duty on 26 April 1982.  His punishment included restriction and extra duty for 2 weeks and forfeiture of $130.00 pay per month for 1 month. 

On 25 September 1982, the applicant was convicted by a special court-martial of two specifications of purchasing merchandise in excess of dollar limitation during the month of April 1982 and of purchasing merchandise in excess of quantity limitation during the month of April 1982.  He was sentenced to receive a BCD, forfeiture of $367.00 pay per month for five months and confinement to hard labor for five months.

On 23 December 1982, the convening authority modified the sentence by remitting the confinement in excess of five months.  On the same day the applicant was placed on excess leave without pay, to await his appellate review.

On 31 October 1983, the United States Court of Military Review affirmed the findings and sentence. 

On 8 March 1984, the appropriate authority noted that the sentence having being affirmed and Article 71(c) having been complied with, ordered the BCD to be duly executed.

On 28 March 1984, the applicant was discharged, with a BCD under the provisions of Army Regulation 635-200, chapter 3 section IV, by reason of conviction by court-martial.  He had completed 3 years, 4 months and 1 days of active military service and had 211 days of lost time due to confinement or being AWOL and 
462 days of excess leave.  The highest rank he attained was pay grade E-2.

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 no later than 28 March 1984.  The time for the applicant to file a request or correction of any error or injustice expired 28 March 1987.  The application is dated 13 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.  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 recommended 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

___WTM_  ___REB     ___JRS _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050827	
SUFFIX		
RECON		
DATE BOARDED	20010814	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1984/03/28	
DISCHARGE AUTHORITY	AR 635-200 CHAP 3 SEC IV	
DISCHARGE REASON	A144.68	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A92.23.	
2.	A92.25	
3.	A93.31	
4.		
5.		
6.