MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            31 July 2001                  
	DOCKET NUMBER:   AR2001056135

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		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 discharge under conditions other than honorable with an Undesirable Discharge Certificate be upgraded to a general or honorable discharge.  He indicates that he was at home awaiting orders when civilian police apprehended him for being absent without leave (AWOL).  He relates how he started drinking, smoking and using marijuana upon his arrival in the Republic of Vietnam and subsequently his 6-month confinement in the Long Binh Jail.  After that he began to drink heavily and abuse drugs.  After his discharge, he continued to drink heavily and abuse drugs for approximately 10 to 15 years.  He indicates he does not drink or use drugs now.  He concludes he is due all “benefits of honorable discharge” according to the Geneva Convention.  His counsel indicates that based on the former service member’s contentions, it is important that the Board consider all contributory factors surrounding this case coupled with his youth.  Counsel humbly requests any and all doubt be resolved in favor of the applicant.

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 26 October 1966, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 63B (Light Wheeled Vehicle Repairman).  He was advanced to pay grade E-3 effective       11 April 1967.

On 14 December 1967, he was convicted by a Special Court-Martial (SPCM) of being AWOL for the periods 30 September to 13 October, 24 to 30 October and 10 to 16 November 1967.  His sentence included a forfeiture of $64 pay per month for 6 months, Confinement at Hard Labor (CHL) for 6 months, and a reduction to pay grade E-1.  The CHL was suspended for 2 months effective 
19 December 1967.  The suspension was vacated on 18 March 1968.

On 19 December 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for allowing children to trespass, in violation of his orders.  His punishment was extra duty for 7 days.

On 19 August 1969, he accepted NJP for being AWOL for the period 11 to        17 August 1969.  His punishment included a reduction to pay grade E-2, restriction for 14 days (suspended) and extra duty for 7 days.

On 19 September 1969, he was convicted by a SPCM of stealing clothing from another soldier on 18 July 1969 and his failure to go to his appointed place of duty on 30 August and 2 September 1969.  His sentence included a forfeiture of $75 pay per month for 4 months, and CHL for 4 months.  The CHL was suspended for 2 months effective 10 November 1969.

On 16 March 1970, he was charged with being AWOL for the period 9 to           13 March 1970, and referred for trial by court-martial.

On 19 March 1970, a Neuropsychiatric Evaluation cleared the applicant for administrative separation. 

On 24 March 1970, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he could receive a bad conduct or dishonorable discharge; that he was quilty of the charges against him; that he had consulted with legal counsel; and that he had no desire to perform further military service.

On 12 May 1970, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that he be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.

On 27 May 1970, the applicant was discharged under other than honorable conditions under the above-cited regulation.  His separation document indicates he had 3 years of creditable service and 259 days of lost time.  At the time of his discharge, he was 21 years of age.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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.  He is no longer eligible to apply under that provision.

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 27 May 1970, the date he was discharged from active service.  The time for the applicant to file a request for correction of any error or injustice expired on 27 May 1973.

The application is dated 31 January 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

_wtm____  _jtm____  _aao____   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056135	
SUFFIX		
RECON		
DATE BOARDED	20010731	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.