MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            21 August 2001                  
	DOCKET NUMBER:   AR2001055013

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 bad conduct discharge (BCD) be upgraded to a general discharge.  He states that his discharge was unjust due to the circumstances of his case at the time.  He further states that his discharge was inequitable because it was based on an isolated incident which was not of physical harm and he only had 6 months left before his expiration of term of service date.

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:

He enlisted in the Regular Army for 3 years as a private pay grade E-1 on 24 August 1977.  He was 20 years of age at the time of enlistment.  His expiration of term of service was 23 August 1980.

His Certificate of Release or Discharge from Active Duty (DD Form 214) shows his date entered on active duty as 24 August 1978 (sic).

On 8 October 1977, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful possession of one ounce of a controlled substance, to wit: marijuana.  His punishment included restriction to a Correctional Custody Facility for 5 days and forfeiture of some pay for 1 month.

On 21 February 1978, he was reported absent without leave (AWOL).  He returned to duty on 22 February 1978.

He attained the grade of private first class on 1 July 1978.

On 15 November 1978, he was tried by a special court-martial of unlawful receiving and buying a television, the property of another soldier, that he knew to be stolen.  He pleaded guilty to the charge.  He was found guilty and sentenced to confinement at hard labor for 30 days and forfeiture of $75.00 pay for 4 months.

On 31 January 1979, the unexecuted portion of the approved sentence to forfeiture for 4 months was suspended until 10 April 1979.

On 4 January 1980, he received nonjudicial punishment under Article 15, UCMJ for failure to go to his appointed place of duty.  His punishment included suspended reduction to pay grade E-2, forfeiture of pay and extra duty.

On 6 August 1980, a general court-martial convened and charged the applicant with one specification of assault and one specification of wrongful communication of a threat to kill.  He pleaded guilty to the charges.

He was found guilty of all the charges.  He was sentenced to confinement at hard labor for 2 years, reduction to pay grade E-1 and a BCD.  On 7 December 1983 the sentence as adjudged was approved, except the confinement was reduced to 1 year.

He was released from confinement and placed on adjudged parole on 1 July 1981 until 5 April 1982.  He was placed on excess leave for an indefinite time pending completion of appellate review.

He was separated on 23 December 1983 with a BCD under the provisions of Army Regulation 635-200, paragraph 3-11, as a result of court-martial.  His total net active service was 4 years, 4 months and 8 days (sic).  His periods of lost time were 15 November to 7 December 1978, 25 April to 22 May 1980, 6 June to 23 August 1980, and 24 August 1980 to 5 April 1982.  He also had 627 days of excess leave.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11, of this regulation, in effect at the time, provided for the separation of personnel with an approved sentence to a BCD, after completion of the appellate review and after the sentence had been affirmed.

Trial by general court-martial was warranted by the serious nature of the multiple offenses charged, the conviction is final and the sentence is commensurate with the misconduct of which the applicant was convicted.

The presumption of regularity applies in this case.  The records are presumed correct and the applicant has the burden to show otherwise.

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 23 December 1983, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 December 1986.
The application is dated 28 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.  

NOTE:  Request the Army Review Boards Agency, Support Division correct the applicant’s separation document (DD Form 214), Item 12a (Date Entered Active Duty This Period) to show 24 August 1977 and Item 12c (Net Active Service This Period) to show 5 years, 4 months and 8 days.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_jve____  _bje_______  _wdb__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001055013	
SUFFIX		
RECON		
DATE BOARDED	20010821	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.