MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 January 2002                  
	DOCKET NUMBER:    AR2001062167

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		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 dishonorable discharge (DD) be upgraded to honorable.  He states that he was young at the time he was in the service and did not appreciate values; however, his life has been much different, particularly the last 30 years.  He also states that he has been a minister for 30 years and he has no evidence to support his request except for the change in his personal life.

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

He entered the Army for 2 years on 23 May 1956 as a private.

On 26 March 1957, the charge of larceny was preferred against the applicant.  Trial by general court-martial was recommended.

On 23 April 1957, he was tried before a general court-martial of stealing United States currency, the property of another soldier.  He was found guilty of the charge and sentenced to a DD, forfeiture of all pay and allowances and confinement at hard labor for six months.

He was dishonorably discharged on 8 October 1957.

Army Regulation 635-200, at paragraph 3-10, then in effect, provided that a soldier would be given a DD pursuant only to an approved sentence of a general court-martial.  The appellate review had to be completed and the affirmed sentence order duly executed.

Army Regulation 635-200, 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 8 October 1957, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 8 October 1960.

The application is dated 26 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

_tsk____  _jtm____  _fne____     CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062167	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.