MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:             18 October 2001                
	DOCKET NUMBER:     AR2001057931

	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. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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, that his records be corrected to upgrade his under other than honorable conditions (UOTHC) discharge to honorable.  He indicates he volunteered to go to Vietnam several times, but they would not send him.  He also indicates he could have received an upgrade of his discharge in about 1975.  Further, he indicates he did not run for Canada.

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 available military records show:

On 22 August 1972, he enlisted in the Army Reserve Delayed Enlistment Program for 6 years.

On 1 September 1972, he enlisted in the Regular Army for 2 years.  He completed his required training and was awarded military occupational specialty 12A (Pioneer).

On 22 May 1973, while assigned to Fort Benning, Georgia, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for the period 15 to 16 May 1973.  His punishment included a reduction (suspended), forfeiture of pay and allowances (suspended) and 30 days in the Correctional Custody Facility.

On 5 February 1974, a physical examination cleared him for separation.

On 7 February 1974, while assigned to Fort Knox, Kentucky, the unit commander preferred court-martial charges against the applicant for being AWOL for the period 18 September 1973 to 24 January 1974.

On 24 February 1974, he indicated that he had completed a physical examination more than 3 working days prior to his departure from his place of separation and that there had been no change in his medical condition.

On 25 February 1974, 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 guilty of the charges against him; that he had consulted with legal counsel; and, that he had no desire to perform further military service.  Additionally, he made a statement, which described his home life and that, if he were not given a discharge, he would go AWOL again and again.
On 5 March 1974, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that a UOTHC discharge be issued.

On 19 March 1974, the applicant was discharged, in pay grade E-1, with a UOTHC discharge, under the above-cited regulation.  His separation document indicates he had 1 year, 2 months and 10 days of creditable service and 131 days of lost time.

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.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of a discharge UOTHC.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 19 March 1974, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 19 March 1977.

The application is dated 5 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 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

_fne____  _mhm____  _bje____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057931	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.