MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            30 AUGUST 2001
	DOCKET NUMBER:   AR2001057431

	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. Raymond V. O’Connor		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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:  In effect, the applicant requests that his discharge under other than honorable conditions be upgraded to honorable.  

He states that he has been trying all his life to uphold the true American within himself.  He needs a liver transplant and would like to have the mark against him changed.  He has tried to have the discharge upgraded.  He made one mistake.  He was young, foolish, and thought he was in love.  He requests that his first discharge, for which he was awarded the Good Conduct Medal, be taken into consideration.  His second discharge was a mistake for which he has paid dearly. Now he needs a liver transplant and if anything should happen, he wants the black mark erased from his record.  He is sorry for his mistake.

On 14 May 2001 the applicant requested assistance from a Member of Congress, stating that he recently discovered that he never received a reply from his request in the 1970’s that his discharge be upgraded, but thought that it had been taken care of.  He states that he went AWOL for 62 days in 1973 during his second enlistment, turned himself in, and spent 20 days in the stockade.  He never went to trial but was released for the good of the service.  He has been a member of the Veterans of Foreign Wars for about 30 years and just found out that the nature of his discharge was in question.  

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:

The applicant entered on active duty on 13 November 1970, completed training as an equipment storage specialist, MOS (Military Occupational Specialty) 76V20, and was assigned to Walter Reed Army Medical Center.  In November 1971 he was assigned to a storage facility in Korea.  He was promoted to pay grade E-4 on 10 January 1972.  The applicant returned to the United States and in July 1972 was assigned to Fort Campbell, Kentucky.  He was released from active duty on 18 August 1972.  The applicant had 1 year, 9 months, and 6 days of service.  His character of service was honorable.  His DD Form 214 shows that he was awarded the National Defense Service Medal, the Good Conduct Medal, and the Armed Forces Expeditionary Medal.  He was transferred to the Army Reserve Control Group (Annual Training) at St. Louis.

The applicant enlisted in the Army National Guard on 19 August 1972 and was discharged from that component upon his enlistment in the Regular Army.

On 29 December 1972 the applicant enlisted in the Army for 3 years.  His enlistment record shows that he enlisted for assignment to Fort Dix, New Jersey. On 15 January 1973 he was assigned to Fort Dix.  On 16 January 1973 the applicant signed a statement to the effect that he had been informed that he had been found disqualified for his enlistment commitment in MOS 71H20 at Fort Dix because of his personal choice.  That statement also indicated that he understood that he would be assigned to training according to the needs of the Army and based upon his qualifications.  He indicated that he did not desire to be trained [in a specialty, other than that currently held].  

On 13 March 1973 orders were published assigning the applicant to the Overseas Replacement Station at Fort Dix with a reporting date of                      29 March 1973, for onward movement to Germany.   He reported to the Overseas Replacement Station on 29 March, and on 3 April 1973 went AWOL.  
The applicant was apprehended by civil authorities and was returned to military control on 5 June 1973 at Daytona Beach, Florida.

On 8 June 1973 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He made a statement to the effect that he could not adjust to its [the Army] hassle.  It doesn’t do anything for him.  The Army’s all right for some people, but he was not one of them.  He stated that there was no chance of his being rehabilitated due to personal problems at home.  He stated that he understood that he would get an undesirable discharge and he would be satisfied with it.

A report of medical examination shows that the applicant was medically qualified for separation with a physical profile code of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that his health was excellent. 

The applicant’s commanding officer recommended that the applicant’s request be approved and that he be issued an Undesirable Discharge Certificate; however, the applicant’s battalion commander recommended disapproval of the applicant’s request and recommended trial by special court-martial.  On             25 June 1973 the separation authority approved the applicant’s request and directed that he be issued an Undesirable Discharge Certificate.  The applicant was discharged on 6 July 1973.  He had 4 months and 6 days of service and    62 days of lost time.    

On 1 March 1974 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  He was so informed on 22 March 1974.
The applicant enlisted in the Army National Guard of Pennsylvania on                28 June 1979 and was discharged on 15 August 1979 because of his erroneous enlistment.

On 1 March 1982 in an unanimous decision, the Army Discharge Review Board again denied the applicant’s request to upgrade his discharge.  He was notified of that decision on that same date. 

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.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his discharge was in error or unjust and as such there is no basis correct his record to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 March 1982, the date the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 March 1985.

The application is dated 18 May 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

__RVO __  __CJP__  __LDS __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057431	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010830	
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.	189	
4.		
5.		
6.