MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           25 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001059042

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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 he be granted disability retirement or separation and that his service be characterized as honorable.  He states, in effect, that he suffered from “organic brain syndrome” while in the military and contends that his under other than honorable conditions discharge was unjust.  He notes that his discharge is preventing him from obtaining “necessary treatment” for his “mental condition” from the VA.  In support of his request he submits extracts from his service medical records.

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 entered active duty on 21 July 1980.  In April 1981 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for assault, failing to go to his appointed place of duty and disobeying an order.  

In February 1982 the applicant’s records were “flagged” (suspension of favorable personnel actions) because the applicant was pending court-martial action.  There is no indication in available record regarding the basis for the pending court-martial.

Extracts from the applicant’s service medical records indicate that he was referred to radiology for an “C-T head scan” in April 1982.  The basis for the referral was “organic brain syndrome, possible progressive” after the applicant complained of recent increased agitation and bizarre behavior.  His C-T head scan was normal and an EEG was non-specific.  The evaluating physician recommended the applicant be returned to the mental health clinic and indicated he was doubtful that the applicant had a “seizure disorder” but believed his primary problems may have been psychiatric.

On 17 June 1982 the applicant was discharged from active duty under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Documents associated with his administrative separation processing were not in records available to the Board.

In 1986 the Army Discharge Review Board (ADRB) denied the applicant’s petition to upgrade his under other than honorable conditions discharge.  The ADRB noted that there was nothing “in the applicant’s file, nor has the applicant submitted any evidence to the Board, that a neurological or a personality disorder mitigated the offenses which led to his being separated.”

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.

Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

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.

In absence of evidence to the contrary the Board presumes that the applicant’s administrative separation was accomplished in accordance with applicable laws and regulation.  Additionally, the Board notes that there is no evidence, nor has the applicant provided any, which confirms that he had any medical condition which would warrant referral for disability processing.  The Board also notes that the applicant has not presented any convincing evidence that he had any medical condition that would serve to mitigate the conduct that resulted in court-martial charges and ultimately to his administrative separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 17 June 1982, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 17 June 1985.

The application is dated 3 June 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

__JNS __  ___LE___  __REB__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001059042	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010925	
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.		
3.		
4.		
5.		
6.