MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR2001053426

	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 his undesirable discharge (UD) be upgraded to honorable.  He states that, at the time of his ETS (expiration of term of service), he was under the care of a mental health service, hospitalized and in jail.  He desires to clear his 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 May 1970, the applicant enlisted in the Regular Army.

The applicant was absent without leave (AWOL) for the periods 15 to 18 June,   1 to 21 July, 25 July to 2 August, 14 to 15 August, and 18 August to                   25 December 1970.

On 26 December 1970, his commander preferred court-martial charges against him, for being AWOL for the periods shown above and advised him of his rights.

On 15 January 1971, a report of psychiatric evaluation indicated the applicant was passive-aggressive, chronic, severe, manifested by oppositional, manipulative behavior.

On 19 January 1971, a physical examination cleared the applicant for separation.

On 25 January 1971, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty; that he could receive an under other than honorable (UOTHC) discharge; and that he understood the effects of receiving such a discharge.  He indicated he had consulted with legal counsel, that he had been fully advised of the nature of his rights, and the facts, which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also was informed of the possible defenses, which appeared to be available at the time and the maximum permissible punishment if he were found guilty.

On 26 February 1971, the appropriate separation authority approved his request and directed his discharge UOTHC with a UD Certificate (UDC).

On 26 February 1971, he was discharged with an UOTHC and the issuance of an UDC.  His separation document indicates he had 4 months and 4 days of creditable service and 166 days of lost time.
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 for the 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 UOTHC discharge with issuance of an UDC. 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 26 February 1971, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 26 February 1974.

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.

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	AR2001053426	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	110.000	
2.		
3.		
4.		
5.		
6.