MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            31 July 2001                  
	DOCKET NUMBER:   AR2001052110

	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. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John T. Meixell		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 general, under honorable conditions.  He states he only had problems with returning back to his unit after leave.  He made a few mistakes, as he was young and stupid, but he learned from them.

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 30 September 1970, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 76Y (Armor/Unit Supply Specialist).  He was advanced to pay grade E-4 effective 20 July 1971.

During the period 18 October 1971 to 29 May 1972, he served in a unit in the Republic of Korea.

On 24 March 1972, he was convicted by a Special Court-Martial (SPCM) of         two specifications of disobeying a lawful order on 5 January 1972 and                  two specifications of causing a breach of peace on 5 January 1972.  His sentence included confinement at hard labor for 3 months, which was suspended for 6 months, reduction to pay grade E-1, and a forfeiture of $100 pay per month for  3 months.  The suspension was vacated.

On 18 December 1972, he was convicted by a SPCM of being absent without leave for the periods 10 to 12 October and 24 October to 6 November 1972.  His sentence included a forfeiture of $50 pay per month for 3 months, hard labor without confinement for 30 days and restriction to his unit for 30 days.

On 1 May 1973, a physical examination cleared the applicant for separation.

On 9 May 1973, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13 for frequent involvement in incidents of a discreditable nature with military authorities.

On 18 June 1973, the appropriate separation authority approved his discharge and directed his reduction to pay grade E-1 and discharge under conditions other than honorable (Undesirable Discharge Certificate).

On 20 June 1973, he was discharged under conditions other than honorable in pay grade E-1.  His separation document shows he had 2 years, 4 months and   4 days of creditable service and 139 days of lost time.

This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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 20 June 1973, the date he was discharged from active service.  The time for the applicant to file a request for correction of any error or injustice expired on 20 June 1976.

The application is dated 15 January 2001 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 the case had been considered and it had been concluded that there was no basis to recommend 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_wtm____  _jtm____  _aao___     CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001052110	
SUFFIX		
RECON		
DATE BOARDED	20010731	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.