MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 FEBRUARY 2002                  
	DOCKET NUMBER:   AR2001065439

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 by upgrading his discharge.  The applicant states that he wants his family to be proud of him for fighting in Vietnam, and to be honored for his courage for fighting for this great nation when he dies.  The applicant 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:

On 17 September 1970, he re-enlisted in the Regular Army for a period of 6 years.  He served in Vietnam from 31 January to 5 October 1971.

On 19 July 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful appropriation of a ¼ ton truck.  His punishment was a forfeiture.

On 30 August 1971, he accepted NJP under the provisions of Article 15, UCMJ for being found sleeping on post.  His punishment was a forfeiture and extra duty.

On 20 September 1971, his commander preferred court-martial charges against him for two specifications of disobeying a lawful order, and for being found sleeping on post. 

On 19 October 1971, the applicant, after consulting with legal counsel, voluntarily requested separation under the provisions of Amy Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.

The applicant’s commander recommended approval of the applicant’s request.  He stated that the applicant had been ineffective as a soldier, that as a mechanic he caused more breakdowns than he repaired, and when transferred to the ammunition section he caused additional problems, consistently mistreating equipment and disobeying orders. 

The appropriate separation authority approved the applicant’s request for discharge and authorized the issuance of an undesirable discharge certificate and directed his reduction to pay grade E-1.

On 6 November 1971, he was separated with an under other than honorable conditions discharge, under the provisions of Army Regulation 635-200, chapter 10, in pay grade E-1.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 2 years, 10 months and 
14 days of creditable service. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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 6 November 1971, the date of the applicant’s discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 November 1974.

The application is dated 1 November 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

__JNS __  __BJE  __  __JED __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065439	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020214	
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.