MEMORANDUM OF CONSIDERATION

	
	BOARD DATE:           24 July 2001                  
	DOCKET NUMBER:   AR2001055877

	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. 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:  Upgrade of his bad conduct discharge (BCD) to honorable.  He states that he was in the military for 4 years, served well and was never in trouble.  He found a camera and was accused of stealing it, other than that his service was honorable.

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 as a private, pay grade E-1 on 10 November 1981.

He was reported absent without leave (AWOL) from his unit from 15 April to 10 May 1982.

On 11 June 1982, a special court-martial convened and charged the applicant of one specification of AWOL from 15 April to 11 May 1982 and one specification of stealing a camera of another soldier.  He pleaded guilty to the charges.

He was found guilty of all the charges.  He was sentenced to confinement at hard labor for 4 months, forfeiture of pay for 6 months and discharge with a BCD.

Upon completion of his confinement he was placed in excess leave status on 14 June 1982 pending appellant review.  His sentence was approved on 21 July 1982.

He was discharged with a BCD under the provisions of Army Regulation 635-200, paragraph 3-11, as a result of court-martial on 22 March 1983.

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.

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the 

quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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, as amended, precludes any action by this Board that would disturb the finality of a court-martial conviction.

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 22 March 1983, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 March 1986.

The application is dated 28 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 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

__mvt___  __jns___  _wdp____   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001055877	
SUFFIX		
RECON		
DATE BOARDED	20010724	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.