MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  8 March 2001
	DOCKET NUMBER:  AR2001051373

	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. Roger Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		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 effect, that his records be corrected to show that he was honorably discharged.  He contends the punishment was “too harsh”.  Counsel indicates that the Board’s attention is invited to the injustice raised by the applicant.  Counsel opines that this submission, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review and rest on the evidence of record.

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 7 October 1977, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 62E (Construction Specialist).

On 23 February 1979, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave for the period 14 to 18 January 1979.  His punishment was a reduction to pay grade E-1, restriction and extra duty.

On 11 May 1979, he accepted NJP under Article 15, UCMJ for theft of cash and other property on 14 April 1979 and use of marijuana on 27 April 1979.  His punishment included a reduction to pay grade E-1, forfeiture of $100 pay, restriction and extra duty.

On 29 August 1979, he was convicted by a Special Court-Martial of theft of cash on three occasions on 9 and 10 July 1979 from his fellow soldiers.  He pled guilty of all charges.  His sentence included confinement at hard labor (CHL) for            5 months, forfeiture of $175 pay per month for 6 months and a Bad Conduct Discharge (BCD).

On 16 October 1979, his sentence to a BCD, forfeiture of $175 pay per month for 2 months, CHL for 75 days and reduction to pay grade E-1, was approved.

On 24 January 1980, the Court of Military Review affirmed the finding of guilty; however, they affirmed only so much of the approved sentence as provided for the BCD, CHL for 75 days, and forfeiture of $175 pay per month for 2 months, thus eliminating the addition of the reduction to pay grade E-1, since that is a provision of his CHL.

On 12 November 1980, he was discharged, with a BCD, under Army Regulation 635-200, chapter 11, based on his conviction by a court-martial.  His separation document indicates he had 2 years, 11 months and 1 day of creditable service and 65 days of lost time.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 provided, in pertinent part, for the separation of personnel with approved sentences to a BCD, after completion of the appellate review and the sentence had been affirmed.

The statutory authority under which this Board was created (Title 10, United States code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  The Board may grant clemency in highly meritorious cases.

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 12 November 1980, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 12 November 1983.

The application is dated 30 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

__ra___  ___bl____  ___wp___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001051373	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010308	
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	BCD up	
2.		
3.		
4.		
5.		
6.