MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          18 October 2001                  
	DOCKET NUMBER:   AR2001061157

	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: That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

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:

During the period 10 February to 10 April 1978, he was in the Army Reserve Delayed Enlistment Program.

On 11 April 1978, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 71L (Administrative Specialist).

He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on two occasions for being absent without leave (AWOL).  The NJP documentation is not in the available records, 

On 6 February 1980, he indicated he did not desire a separation medical examination.

On 7 February 1980, a Mental Status Evaluation cleared the applicant for separation. 

On 12 February 1980, the unit commander preferred court-martial charges against the applicant for being AWOL for the period 5 October 1979 to              31 January 1980.

On 12 February 1980, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty; that he could receive a UOTHC discharge; and that he understood the effects of receiving such a discharge.  He indicated he had consulted with legal counsel, that he had been fully advised of the nature of his rights, and the facts whch must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also was informed of the possible defenses, which appeared to be available at the time and the maximum permissible punishment if he were found guilty.

On 9 March 1980, the general court-martial convening authority approved his discharge.  On 12 March 1980, he was discharged UOTHC under the authority cited in the preceeding paragraph.  His separation document indicates he had    1 year, 3 months and 14 days of net active service this period, and 230 days of lost time.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

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.

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 12 March 1980, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 12 March 1983.

The application is dated 7 August 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____  _bej____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061157	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.