MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2001                  
	DOCKET NUMBER:   AR2001053812

	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 be upgraded to general, under honorable conditions.  He indicates, in effect, that the upgrade should be under Presidential Proclamation 4313.

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 27 May 1975, the applicant entered the Army with a waiver of moral eligibility. 

On 1 August 1975, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for his failure to go to his appointed place of duty on     29 July 1975.  His punishment included a forfeiture of $50 pay per month for       1 month and extra duty for 7 days

On 28 October 1975, he was placed in an absent without leave (AWOL) status.

On 8 November 1975, his records were flagged pending discharge under the provisions of Army Regulation 635-206.

On 16 November 1975, his status was changed to in the hands of civil authorities.  He was in jail in Midwest City, Oklahoma pending trial for burglary and other charges.

On 15 January 1976, he was sentenced to 18 months each for burglary, concealment of stolen property and grand larceny.  The sentences were to run concurrently.

On 27 January 1976, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-206, conviction by a civil court.

On 11 March 1976, the appropriate separation authority approved the discharge and directed reduction to pay grade E-1.

On 16 March 1976, the applicant was discharged, in pay grade E-1, under the above cited regulation, with an undesirable discharge.  His separation document indicates that he had 5 months and 2 days on net active service and 141 days time lost.

Army Regulation 635-206, Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL), then in effect, established the policy and prescribed the procedures for the elimination of enlisted personnel for misconduct by reason of being convicted by a civil court during their current term of active military service.  The regulation provided for the issuance of an undesirable discharge. 

Presidential Proclamation 4313, issued on 16 September 1974, by President Ford, provided for the issuance of a clemency discharge to certain former soldiers, who voluntarily entered into and completed an alternate public works program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge, for the good of the service, with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  A clemency discharge did not restore veteran’s benefits; rather, it restored federal and, in most instances, state civil rights which were previously denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service, the original characterization of service, undesirable would be retained.  This policy did not apply to those separated for misconduct conviction by civil court.

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 16 March 1976, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 16 March 1979.

The application is dated 11 February 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	AR2001053812	
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.