MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 AUGUST 2001
	DOCKET NUMBER:   AR2001057484

	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. Walter T. Morrison		Chairperson	
	Mr. Ronald e. Blakely		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 his discharge under conditions other than honorable be upgraded to a general or an honorable discharge.

The applicant states that he never had any trouble with civil authorities or the military police.  He was promised a GED (General Education Diploma), which he did not get.  He states that he received nonjudicial punishment numerous times, but not one of them was serious enough to warrant the discharge that he received.   

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 enlisted for four years on 11 December 1972 and after completion of training was assigned to an infantry company in Hawaii in April 1973.  The applicant’s DA Form 2-1 shows that he had 11 separate periods of AWOL, the first period while still in training, and the last period in November and December of 1974.  He received nonjudicial punishment under Article 15, UCMJ, on four occasions for his periods of AWOL, and nonjudicial punishment on three other occasions for failure to go to his place of duty and for disobeying a lawful order.

A 16 April 1973 medical report indicates that the applicant had improperly used tranquilizers and cannabis sativa.

On 1 October 1973 the applicant’s commanding officer recommended that the applicant be barred from reenlisting.  Statements from unit officers and NCOs in support of that recommendation indicate that the applicant had been counseled on numerous occasions concerning his AWOL periods, his personal affairs, his debts, his personal appearance and hygiene, his irresponsibility, poor attitude, and his unsatisfactory performance of duty.  The bar was approved on               23 October 1973.

On 8 January 1975 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  The applicant made a statement to the effect that his financial and personal problems were causing him to go AWOL.  He stated that after each AWOL period, he returned to his unit, only to be harassed instead of helped.    

A 27 January 1975 report of medical examination shows that he was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.   

A report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right, and had the mental capacity to understand and participate in board proceedings. The report indicates that he met the medical standards for retention in the Army.

On 4 February 1975 the separation authority approved the applicant’s request for discharge for the good of the service and directed that he be issued an Undesirable Discharge Certificate.  The applicant was discharged on                  21 February 1975 at Oakland, California.  He had 2 years and 9 days of service and 62 days of lost time.

On 11 February 1976 in an unanimous opinion, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  

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 grade was in error or unjust and as such there is no basis to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 February 1976, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on         11 February 1979.

The application is dated 28 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 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

__WTM__  __REB  _  __JRS  __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057484	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010814	
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.	110.00	
2.	142.00	
3.	189	
4.		
5.		
6.