MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           24 JULY 2001                   
	DOCKET NUMBER:   AR2001055101

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		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 discharge under other than honorable conditions be upgraded to honorable.  He states, in effect, that he believes he was pressured into accepting the undesirable discharge or face a court-martial trial.  He notes that he had received a prior honorable discharge and that he was too immature at the time to know what he was doing to his life.  He submits no evidence in support of his request, except a copy of his March 1970 honorable discharge document.

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 initially entered active duty on 14 October 1968 at the age of 17 and was honorably discharged for the purpose of immediate reenlistment on 25 March 1970.

Between June 1969 and April 1972 the applicant was punished six different times under Article 15 of the UCMJ (Uniform Code of Military Justice) for a variety of offenses including failing to be at his appointed place of duty, damaging personal property, failing to obey a lawful order, AWOL (absent without leave), and possession of marijuana.

In October 1970, shortly after his March 1970 reenlistment, the applicant's unit commander initiated a local bar to reenlistment against the applicant.  The commander noted the applicant had been involved in several discreditable incidents in the civilian community and recurrent UCMJ actions.  The local bar to reenlistment was approved on 2 November 1970.

Although documents associated with the applicant's administrative discharge were not in records available to the Board, a 19 March 1972 DA Form 268 (Report for Suspension of Favorable Personnel Actions) indicates the applicant was under investigation by the CID (Criminal Investigation Division) "as a suspect of an offense of possession of narcotics."  On 18 July 1972 the applicant acknowledged receipt of a copy of board "proceedings leading to [his] discharge."

On 19 July 1972 the applicant was discharged under other than honorable conditions.  His separation orders and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicate he was discharged under the provisions of Army Regulation 635-200 for "the good of the service."

It appears the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

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.

There is no evidence, nor has the applicant provided any, which would serve as a basis to upgrade his discharge to honorable.  There is no indication that his discharge under other than honorable conditions was in error or unjust.  The fact that he may have received an honorable discharge at the time of his reenlistment in 1970 is not a basis, in and of itself, to justify upgrading his 1972 discharge.

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 July 1972, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 19 July 1975.

The application is dated 22 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 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

__JNS __  __MVT __  __WDP _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001055101	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010724	
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.