MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          27 November 2001                             
	DOCKET NUMBER:  AR2001062655

	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	
	Mrs. Judy Blanchard-Miller		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:  That his undesirable discharge (UD) be upgraded to a medical discharge or anything under honorable conditions.  The applicant states, in effect, that he had a bad back when he was drafted into the military and he still has a bad back.

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 9 April 1952, the applicant was inducted into the Army of the United States for a period of 2 years.  The applicant completed the required training and was awarded military occupational specialty 1822 (Utilities Repairman). 

On 26 August 1952, the applicant was convicted by a special court-martial (SPCM) of breaking restriction and of the wrongful use of another soldier’s liberty pass.  He was sentenced to 30 days confinement at hard labor and a forfeiture of $57.00 pay.

On 23 December 1952, the applicant was convicted by a SPCM of being absent without leave from 2 September to 8 November 1952.  He was sentenced to
6 months confinement at hard labor and a forfeiture of $25.00 pay per month for 6 months. 

On 28 June 1953, the applicant’s record indicates that the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for missing formation.  The particulars are missing from his file. 

On 11 July 1953, a mental and a physical examination found the applicant mentally and physically fit for retention.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

On 18 July 1953, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 615-368, for unfitness, and that he would be required to appear before a board of officers for the purpose of determining whether the applicant should be discharged before the expiration of his term of service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  
On 4 August 1953, the applicant appeared before a board of officers with counsel.  The board of officers found the applicant undesirable for further retention and recommended an undesirable discharge. 

On 2 September 1953, the appropriate authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  On 
26 September 1953, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 615-368, for unfitness with a UD.  He had completed 1 year, 1 month and 24 days of creditable active service and 114 days of time lost.  

Army Regulation 615-368, in effect at the time set forth the policy and procedures for separation of enlisted personnel.  Unfitness included, in pertinent part, habits and traits of character manifested by antisocial or amoral trends.  When discharged because of unfitness, a UD was issued.  (Board proceedings are required).

There is no evidence, and the applicant has not provided any evidence to show why his discharge should be upgraded or changed to a medical discharge.   

On 24 August 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 
3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 24 August 1982, the date the ADRB denied the applicant’s request for an upgrade of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1985.

The application is dated 8 September 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 this 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	AR2001062655	
SUFFIX		
RECON		
DATE BOARDED	20011127	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19530926	
DISCHARGE AUTHORITY	AR615-368 . . . . .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5100	
2.		
3.		
4.		
5.		
6.