MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           10 OCTOBER 2001                  
	DOCKET NUMBER:   AR2001056693

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		Member	
	Mr. Joe R. Schroeder		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 she receive a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing an honorable characterization of service from 1979 to 1983.  

She states that although her period of service from 1983 to 1986 was other than honorable, the period from 1979 to 1983 was honorable service.  She submits a copy of a ruling by the Board of Veterans’ Appeals to support her request.  She states that she is truly sorry for that period in her life which resulted in her bad conduct discharge; however, she is older and has tried to live a better life.  She states that she is married and has a healthy and happy six year old son, and that God has forgiven her, and she has tried to forgive herself. 

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:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of her request to upgrade her discharge on 7 February 1996 (AC95-08722).  

The applicant enlisted in the Army for four years on 10 October 1979, and on    10 August 1983 after obtaining a waiver for being overweight because of pregnancy, extended her enlistment for 8 months. 

On 30 October 1983, the applicant committed an aggravated assault on her son. She was convicted at a court-martial in May 1984.  The applicant was involuntarily extended on active duty to serve her sentence and await appellate review of her case.  She served a one-year sentence to confinement and was discharged on 24 December 1986 with a bad conduct discharge after the appellate review of her case was complete.

On 6 March 2001 the Board of Veterans’ Appeals (BVA) ruled that the applicant’s oath of extension of enlistment was considered a reenlistment, and consequently she was eligible for unconditional discharge as of 9 October 1983 [her original separation (ETS) date] under other than dishonorable conditions, a characterization that does not exist in the statutes, regulations and policies that govern the Army; and her first period of service was not a bar to eligibility for VA benefits.  The purpose of the BVA was to determine whether the applicant was barred from receipt of VA benefits and whether certain ailments were service connected.  The board concluded that her active duty service from                      10 October 1983 to 24 December 1986 was terminated under other than honorable conditions, and that discharge was a bar to entitlement to VA benefits. She was, however, not precluded from obtaining VA benefits for disability during her first period of active service from 10 October 1979 to 9 October 1983.  The board went on to discuss her request for service connection, and denied entitlement to service connection for depression, anxiety, paranoia, insomnia, a mental breakdown, headaches, and post traumatic stress disorder (PTSD).  The board stated that the preponderance of evidence was against her claim.
  
The applicant has submitted a 30 March 2001 request to the Army Discharge Review Board to have her discharge upgraded to honorable.  She included with that request a copy of a letter with copies of her service medical records to the VA requesting an increase in her disability rating for her bunion on her right toe, and claiming service connected disabilities for other ailments.

Army Regulation 635-5 establishes standardized policy for preparing and distributing DD Form 214 and states in pertinent part that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.   
 
Department of Defense Directive 1332.28 establishes uniform policies, procedures, and standards for the review of discharges, and states in effect, that a discharge review board has no authority to review the discharge of a former member of the Armed Forces who has been discharged as a result of a sentence by a general court-martial. 

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.

There is no evidence, nor has the applicant provided any, to warrant issuing a DD Form 214 for the requested period of service.  The applicant is not entitled by law to a separate DD 214 showing that she was discharged from her first enlistment, nor is she entitled by law to have her current DD 214 annotated to show honorable completion of her first enlistment.  While the Board could act to relieve an injustice even in the absence of an error, the facts of the case do not appear to establish that the applicant has suffered an injustice.
.
DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 December 1986, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 December 1989.

The application is dated 22 April 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 her case had been considered and it 
had been concluded that there was no basis to recommend a correction of her 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 her application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__LLS    _  __CG___  ___JRS  _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056693	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011010	
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.	110.00	
3.	1041	
4.		
5.		
6.