MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:           29 March 2001
	DOCKET NUMBER:  AR 2001051872

	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. Sloan		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Lester Echols		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 he was discharged for a physical disability.  He states he was issued an under conditions other than honorable discharge when he had been informed he would receive a medical discharge.  He indicates he was in the process of receiving a medical discharge when he was summarily released.

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:

On 27 January 1969, the applicant enlisted with a waiver for civil convictions.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-2 on        28 March 1969. 

On 14 July 1969, he was convicted by a Special Court-Martial (SPCM) of being absent without leave (AWOL) for the period 17 April to 17 June 1969.  His sentence was confinement at hard labor for 3 months and a forfeiture of $41 for   3 months.  He was reduced to pay grade E-1.

During the period 18 July 1969 to 8 March 1970, he was AWOL.

On 18 March 1970, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had been advised of his rights.  He declined to submit statements in support of his case and also declined legal counsel.

The unit commander recommended approval and indicated the applicant had several prior civil charges of (1) a Peace Warrant (drunk and beat his wife),      (2) Affray and Damage to Property (involved in a gang fight), (3) Larceny,            2 counts, (4) Peace Warrant (drunk and threatened his wife), and, (5) non-support of dependents.  These were in addition to his conviction by SPCM.

On 15 April 1973, the appropriate separation authority approved the applicant’s discharge and directed he be issued an undesirable discharge.

On 27 April 1970, a physical examination cleared him for separation with an 111111A physical profile.

On 27 April 1970, he was discharged in pay grade E-1 and issued an undesirable discharge.  His separation document indicates he had 8 months and 19 days of creditable service and 368 days of lost time.

In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

On 30 May 1973, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for discharge upgrade.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or 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 forth good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge. 

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 30 May 1973, the date the ADRB denied his request for upgrade.  The time for the applicant to file a request for correction of any error or injustice expired on 30 May 1976.

The application is dated 29 December 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

_jns_____  _cjp ____  _el _____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001051872	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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	
2.		
3.		
4.		
5.		
6.