MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             10 October 2001                
	DOCKET NUMBER:    AR2001061224

	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. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		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 her records be corrected to show she was issued an honorable discharge.  She feels the Article 15’s were unjust and hastily done and she was not given the opportunity to do another job at the time.  She feels she has grown as a person and would like to leave an honorable legacy for her children and family just in case they choose the military as a career.  She advises anyone that the military is a great place to start and if she would have stayed, she would be getting ready to retire after a wonderful experience.  Further, she indicates she has become a role model to so many young people where she lives and tells them the benefits of the military and would like to leave this world with an Honorable Discharge Certificate for her children and family.

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:

On 2 May 1984, she enlisted in the Army Reserve Delayed Entry Program.

On 4 May 1984, she enlisted in the Regular Army, in pay grade E-3.  

On 3 November 1984, while still in Advanced Individual Training, she was advanced to pay grade E-4.

On 1 March 1985, she accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for her violation of a lawful order on 7 February and 11 February 1985.  Her punishment included a reduction to pay grade E-3 (suspended for 60 days), extra duty for 14 days and restriction for 14 days.

On 3 April 1985, the suspension of her reduction to pay grade E-3 was vacated based on her violation of a lawful order on 29 March 1985.

On 10 April 1985, she accepted NJP for her violation of a lawful order.  Her punishment included a reduction to pay grade E-2 (suspended for 90 days), forfeiture of $200 pay per month for 2 months and restriction for 14 days.

On 14 May 1985, the unit commander recommended her separation under chapter 13, Army Regulation 635-200 based on unsatisfactory performance of duty.  The appropriate separation authority approved the request and directed her discharge with the issuance of a General Discharge Certificate.

On 12 June 1985, she was separated under honorable conditions under the above-cited Army Regulation.  Her separation document indicates she had         1 year, 1 month and 9 days of creditable service.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.  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 her 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 June 1985, the date she was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 12 June 1988.

The application is dated 1 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

__cg____  __jrs___  __lls_____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061224	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.000	
2.		
3.		
4.		
5.		
6.