MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           20 November 2001 
	DOCKET NUMBER:   AR2001061642

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 records be corrected to upgrade his under other than honorable conditions (UOTHC) discharge to honorable.  He indicates the error or injustice was kicking him out 6 months before the expiration of his term of service.  Further, he indicates that he was discharged after 6 months of drug rehabilitation and passed.  He has been getting off of drugs since 1974.

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 8 July 1971, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 13A (Field Artillery Basic).

On 20 November 1972, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) on 8 November 1972.  His punishment included a reduction to pay grade E-2 (suspended), a forfeiture of $50 and extra duty for 7 days.

On 16 June 1973, he was entered into the Alcohol and Drug Abuse Control Program (ADACP) for his use of Heroin, Darvon, Hashish, Marijuana and other psychostimulants.

On 16 August 1973, an ADACP status report indicated he had received one NJP since his referral into the program.  The commander and the therapist’s opinion of his progress were good.

On 16 October 1973, an ADACP status report indicated he had been arrested once, accepted NJP on 2 occasions and had one other report of punishment since his last status report.  The report indicates he had been tested on               6 occasions and tested positive on each.  The commander and the therapist’s opinion is now shown as poor.  The applicant did not successfully complete the ADACP.  The additional NJP’s are not shown in the available records.

On 27 November 1973, he accepted NJP for being AWOL during the period        1 through 12 October 1973.  His punishment included a reduction to pay grade E-1, forfeiture of $163 pay per month for 2 months, restriction for 60 days and extra duty for 45 days.

On 4 January 1974, a physical examination cleared the applicant for separation.

On 7 January 1974, the unit commander preferred court-martial charges against him for the wrongful possession of cocaine on 12 October 1973 and the wrongful possession of a hypodermic syringe and needle.

On 14 January 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.

On 18 January 1974, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that a UOTHC discharge be issued.

On 30 January 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 2 years, 6 months and 23 days of creditable service and 12 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 30 January 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 30 January 1977.

The application is dated 10 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:

_mhm___  _rks____  _jlp____ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061642	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.