MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           9 August 2001                  
	DOCKET NUMBER:   AR2001056351

	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. G. E. Vandenberg.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn 		Member	
	Ms. Gail J. Wire		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded.  He states, in effect, that both he and the Department of Veterans Affairs (VA) have been told that he has a bad conduct discharge (BCD) and he is barred from benefits because of the BCD.  He states that he does not know what a Chapter 10 is or how he got it.  His counsel concurs with the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.  The applicant indicates that the date of discovery of the alleged error or injustice was 21 November 1979.  He offers no reason why it would be in the interest of justice for the Board to consider this application.

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 Oklahoma Army National Guard on 30 November 1977 and was ordered to active duty for training on 28 January 1978.

The applicant received non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) period 7 February – 14 March 1978.  On 12 December 1978 he was tried and convicted by special court-martial of being AWOL 15 March – 4 October 1978 and 7 – 9 October 1978.  The sentence imposed by court-martial included 30 days confinement.  The applicant again received NJP for a fourth period of AWOL 1 – 29 May 1979.  The punishment included placement in a correctional custody facility for 30 days.

The applicant escaped from confinement on 1 July 1979 and was again AWOL until 2 September 1979. 

On 15 October 1979 the Commander, 15th Battalion, 4th CST Brigade recommended the applicant be tried by a special court-martial with the power to adjudge a bad conduct discharge.  He cited the applicant’s most recent AWOL period, his escape and his history of repeated periods of AWOL as justification.  The applicant was advised of his rights, including his rights to counsel and to elect discharge in lieu of trial by court-martial and he acknowledged these rights on 15 October 1979.

On 22 October 1979, charges were preferred and the applicant consulted with counsel.  At that time he submitted a request, under Army Regulation (AR) 635-200, chapter 10 for discharge in lieu of trial by court-martial.  He admitted that he was guilty of the charges preferred against him and/or to lesser included charges for which he could receive a punitive discharge.  He acknowledged that he could receive an UOTHC discharge and this type of discharge would result in the loss of most or all Army and Department of Veterans Affairs (VA) benefits.

The separation authority, a major general, approved the applicant’s request for administrative separation and directed that he be discharged under other than honorable conditions.  On 21 November 1979 the applicant was separated under the provisions of AR 635-200, chapter 10 with an UOTHC.  He had served 10 months and 9 days and had 349 days lost time. 

There is no evidence that the applicant requested review of his discharge within the 15-year statute of limitations for consideration by the ADRB.

The applicant has previously requested review of his records on the issue of entitlement to a medical discharge.  The Board denied that request (AC94-0529) to correct his records on 26 July 1995.

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 UOTHC discharge is normally considered appropriate. 

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 21 November 1979, the date discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 21 November 1982.

The application is dated 7 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 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

__INW __  __FNE__  __GJW __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056351	
SUFFIX		
RECON	 	
DATE BOARDED	20010809 	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.