MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR200152481

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. James E. Anderholm		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 the character of service on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated      13 September 1972 be changed to general (under honorable conditions).  He provides three letters of support and a copy of his DD Form 214.

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 October 1970, the applicant enlisted in the Regular Army for 3 years.  He completed his required training and was awarded military occupational specialty 94B (Cook).  He was advanced to pay grade E-2 on 1 March 1971.

On 9 November 1971, he was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) for the period 1 June to 5 October 1971.  His sentence included confinement at hard labor (CHL) for 3 months (suspended), forfeiture of $50 pay per month for 3 months and reduction to pay grade E-1.

On 17 February 1972, he was advanced to pay grade E-2.

On 8 June 1972, he was convicted by a SPCM of being AWOL for the period 2 to 18 May 1972.  His sentence included CHL for 2 months, forfeiture of $190 pay for 2 months and reduction to pay grade E-1.

On 28 June 1972, the unit commander advised the applicant of his contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness, based on his excessive absenteeism and for his substandard performance of duty.  He was advised of his rights.

On 7 July 1972, after consulting with legal counsel, the applicant acknowledged the commander’s contemplated action to accomplish his separation. He waived consideration of and personal appearance before a board of officers and representation by legal counsel.  He elected not to submit statements in his own behalf.

A Report of Mental Status Evaluation cleared the applicant for separation.

On 30 August 1972, the appropriate separation authority approved his discharge under Army Regulation 635-212, for unfitness and directed he be issued an Undesirable Discharge Certificate (UDC).

On 5 September 1972, a physical examination cleared him for separation.

On 13 September 1972, he was discharged, in pay grade E-1, under other than honorable conditions with an UDC, under Army Regulation 635-212, for unfitness. His separation document indicates he had 1 year, 5 months and 1 day of creditable service and 166 days of lost time.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel from active duty for unfitness and unsuitability. That regulation provided, in pertinent part, that commanders would separate a member for unfitness when one of the following conditions existed: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming drugs or marijuana; an established pattern for shirking; and established pattern showing dishonorable failure to pay just debts; or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 

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 13 September 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 September 1975.

The application is dated 26 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_jea___     _svw____  _gdp____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR200152481	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	110.00	
2.		
3.		
4.		
5.		
6.