MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 NOVEMBER 2001
	DOCKET NUMBER:   AR2001061650

	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. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 general discharge be upgraded to honorable.  He makes no statement and submits no evidence in support of his request.

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 28 February 1979, at the age of 18, with 11 years of formal education, and a GT (general technical) score of 109. 

He successfully completed basic training and began advanced individual training as a medical specialist at Fort Sam Houston, Texas, in May 1979.

Between July 1979 and February 1980, the applicant was punished three times under Article 15 of the UCMJ (Uniform Code of Military Justice).  His offenses included dereliction of duty and failure to report to his appointed place of duty.  

In February 1980 his unit commander initiated action to bar the applicant from reenlisting.  His records of NJP (nonjudicial punishment), and a letter of indebtedness, were cited as the basis for the local bar to reenlistment.  The bar was approved.

In March 1980 the applicant was punished again under Article 15 of the UCMJ for failing to be at his appointment place of duty.

In March 1980 the applicant's unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 5 (Expeditious Discharge).  The commander cited the applicant's four UCMJ actions, poor attitude, lack of motivation, lack of self-discipline, and inability to accept instructions and directions, as the basis for his recommendation.  The applicant acknowledged receipt of the proposed recommendation, consulted with counsel, and waived his attendant rights, including the right to make a statement or submit a rebuttal.

The recommendation was approved, and on 15 May 1980 the applicant was discharged under honorable conditions.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.  

Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly 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.

The applicant's administrative separation was accomplished in accordance with established laws and regulation.  There is no evidence which would serve as a basis to justify upgrading the character of his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 May 1980, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 15 May 1983.

The application was received in 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 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

__AAO__  __LE____  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061650	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011127	
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.