MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            09 AUGUST 2001
	DOCKET NUMBER:   AR2001054377

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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 records be corrected by upgrading his undesirable discharge.  The applicant states that in March or April of 1962 he joined the Black Panther Party and "neither said nor did anything without the advice and consent of the so-called Revolutionary Leaders of the Black Panther Party", and that after more than a half-dozen times of being absent without leave (AWOL) his commander talked with him about his lack of interest in fulfilling his obligation to the U.S. Army.  He states it was at that point that he admitted to having no belief in, and no intention of fulfilling his obligation to the U.S. Army.  He further states that even though he can not prove that most of the allegations used to discharge him were false and prefabricated, he feels that during that era black men who were involved in certain organizations were feared and targeted for removal from society, that he was told that he would be discharged with the lowest form of discharge they could give, and was called names and was threatened.  He wants his discharge upgraded to ensure that the story of his life is revealed in truth and fairness and not based on lies and prefabricated allegations.  In support of his request he submits three character references.    

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 12 September 1961, he enlisted in the Regular Army for a period of 3 years.  He successfully completed basic training at Fort Gordon Georgia but was AWOL and received a summary court-martial while attending advanced individual training at Fort Knox, Kentucky.  

On 13 December 1961, while attending advanced individual training (AIT) he was convicted by a summary court-martial for being AWOL from 1 to 11 December 1961.  He was sentenced to restriction and a forfeiture.

On 10 May 1962, he was convicted by summary court-martial for being AWOL.  His sentence was to hard labor without confinement for 30 days and a forfeiture.

On 27 February 1963 he was convicted by a special court-martial for being AWOL, for failure to go to his appointed place of duty (missing bed check) and for breaking restriction.  He was sentenced to confinement at hard labor for three months and a forfeiture.  On 29 April 1963 the sentence of confinement at hard labor for three months was suspended for six months.  However, on 23 July 1963, the suspension was vacated and the applicant was confined at hard labor for three months.

On 1 August 1963, a Psychiatric Evaluation diagnosed the applicant with passive aggressive reaction, chronic mild, manifested by stubbornness, procrastination, inefficiency and passive obstructionism and excessive use of alcohol.  The evaluation recommended that in view of the long standing character disorder, poor motivation for service and the negative character of his service, he be separated as expeditiously as possible under the appropriate administrative regulation.

Information obtained from the applicant's Army Discharge Review Board (ADRB) Case Report indicates on 12 August 1963, the applicant was notified of his commander's intent to separate him, and was advised of his rights.  After consulting with legal counsel the applicant waived consideration by a board of officers and submitted no statements.  On 12 August 1963, his unit commander recommended his discharge for unfitness with the issuance of an undesirable discharge, and on 20 August 1963 his intermediate commander recommended his discharge for unfitness with the issuance of an undesirable discharge. 

On 22 August 1963, the applicant was convicted by a summary court-martial for being AWOL.  He was sentenced to confinement at hard labor for one month, a forfeiture, and reduction to pay grade E-1.

On 30 August 1963, a medical examination cleared the applicant for separation noting his passive aggressive reaction.

On 16 September 1963, a Medical Officer's Report states that the applicant had been given a psychiatric evaluation and a separation medical examination, and 
was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

On 1 October 1963, the applicant received a summarized Article 15, for being absent from his unit and missing bed check.  His punishment was restriction and extra duty.  

The appropriate separation authority directed the applicant's discharge under the provisions of Army Regulation 635-208 and the issuance of an undesirable discharge.  Accordingly, on 7 November 1963, the applicant was discharged.   

On 24 August 1981, the applicant was notified that the ADRB had denied his request to upgrade his discharge.

Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

There is no evidence in the applicant's records nor did he submit documentation to substantiate his claim that his discharge was based on lies and fabricated allegations.  

The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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 11 August 1981, the date of final action by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 11 August 1984.

The application is dated 26 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 his 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 his application within the three-year time limit. 

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__INW _    __FNE __  __GJW__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001054377	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010809	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.