MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            16 AUGUST 2001
	DOCKET NUMBER:   AR2001054569

	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. June Hajjar		Chairperson	
	Mr. Thomas F. Baxter		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 records be corrected by upgrading his bad conduct discharge (BCD).  The applicant states that the Department of Veterans Affairs (VA) is terminating his benefits because of his record of service, that his court-marital conviction which led to his BCD was biased with racism, and denied him due process. 

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The applicant initially enlisted in the Regular Army on 9 December 1946 for a period of  3 years and reenlisted on 2 October 1948.  

On 30 January 1951, the applicant was convicted by a special court-martial of possession of narcotics on 26 August 1950, and the use of narcotics on 25 and   
26 August 1950.  His sentence was separation with a bad conduct discharge and  a forfeiture and confinement at hard labor for six months.  The finding of guilty for the use of narcotics on 25 and 26 August 1950 was disapproved and the sentence to confinement at hard labor was reduced from six months to two months.  The sentence was affirmed on 16 April 1951.

There is no information in the available records showing the date of the applicant’s discharge.  

On 2 January 2001, the applicant was notified by the Department of Veterans Affairs that the character of his discharge for the period 9 December 1946 to 19 April 1951 was not honorable for VA purposes, which made him ineligible for VA benefits.  The notification advised him of rebuttal procedures and suggested that he petition the Army Discharge Review Board or the Army Board for Correction of Military Records 
to have his discharge upgraded.

In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Trial by court-martial was warranted by the gravity of the offense charged, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice or that he was denied due process of the law.

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 19 April 1951, the date the applicant gives as his separation date.  The time for the applicant to file a request for correction of any error or injustice expired on 19 April 1954.

The application is dated 5 March 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 this 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

__JH ___  __TFB___  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001054569	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010816	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	142.0	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.