MEMORANDUM OF CONSIDERATION

h	IN THE CASE OF: 

	BOARD DATE:           18 December 2001                 
	DOCKET NUMBER:   AR2001062075

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyl		Member	
	Mr. Jose A. Martinez		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:  Through counsel, that his discharge under other than honorable conditions (UOTHC) be pardoned or waived, or, in effect, upgraded.  Counsel states that due to the applicant’s youth, recent arrival in the United States (US) (4 months prior to enlisting) and his short education, he made a mistake enlisting in the Army.  Counsel also states the applicant realized the mistake within two weeks of enlisting that his lack of the English language prevented him from understanding orders and his original contract which was written in English.  Counsel submits documents from the State Department in response to a Freedom of Information Act request in support of the application.

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 enlisted in the Regular Army at age 21, as a private, pay grade E-1, on 12 June 1968 for 2 years.

He was reported absent without leave on 1 July 1968.  On 30 July 1968 he was dropped from the rolls as a deserter.

On 3 August 1968, his commander advised The Adjutant General, that the applicant had absented himself from his unit/organization as of 3 August 1968 and he had failed to return.  The applicant’s next of kin were notified as to his absence and return notification as to his whereabouts was received from some relatives.  The applicant was in Bogata, Colombia; his home of record.

The Federal Bureau of Investigation advised the Army that the applicant had been residing in Bogota, Colombia since 19 February 1969 and that the applicant stated he would like to return to the US and complete his military obligation when and if his mother recovered from her illness.

On 25 May 1973, he was notified in writing, at his last known address in Colombia, South America, that he was charged with desertion from the US Army and thereby being discharged for that reason.

He was discharged in pay grade E-1 for “Alien DFR [Dropped From The Rolls of the Army] For More Than One Year” under conditions other than honorable on 
23 August 1973.  He had a total of 19 days net service and a total of 1873 days time lost.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities, and desertion or absence without leave.  The regulation does not provide for pardons or waivers of this type of discharge.

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 23 August 1973, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 August 1976.

The application is dated 18 July 2001 and the applicant nor counsel have 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

_jam____  _inw____  _tl_____     CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062075	
SUFFIX		
RECON		
DATE BOARDED	20011218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.	106.00	
3.		
4.		
5.		
6.