MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 July 2002                  
	DOCKET NUMBER:   AR2002066245

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Raymond J. Wagner		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 discharge should be upgraded and that his narrative reason for discharge be changed to physical disability.  He contends that an injury to his left leg, sustained in basic training, interfered with or prevented him from performing his duties and led to the commission of the acts that resulted in his discharge.  

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 that:

The applicant entered active duty on 1 September 1977.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11B (Light Weapons Infantry). 

The applicant was reported absent without leave from 3-9 January 1978.  The applicant received nonjudicial punishment (NLP) under Article 15, Uniform Code of Military Justice for this period of AWOL.  The punishment consisted of forfeiture of $150 per month for two months, two hours extra duty per day for 30 days and 30 days restriction.  All punishment was suspended except for one month's forfeiture of pay. 

On 16 March 1978, he again received NJP for willfully disobeying a lawful order.  The punishment consisted of forfeiture of $92 for one month, 14 days extra duty, and 14 days restriction.   As a result of this action his previous suspended punishment was ordered to be executed.

On 28 April 1978, a special court-martial (SPCM) found the applicant guilty of disobeying a lawful order and six specifications of absence from appointed place of duty (AAPD).  His sentence consisted of 4 months confinement at hard labor.  On 2 June 1978, the unexecuted portion of his confinement was suspended and the applicant was transferred to the Retraining Brigade.

Subsequent to the SPCM, he received three additional NJPs as follows:  26 June 1978, AAPD; 21 July 1978, AAPD, acting with contempt toward a noncommissioned officer, and failure to obey a lawful order; and, 1 September 1978, AAPD, using provoking language and willfully disobeying a lawful order.

A summary of the applicant's attitude, conduct, performance and discreditable acts was compiled for the period of 10 May 1978 through 1 September 1978.  During this period the applicant had 28 entries of negative incidents.  His weekly evaluations oscillated between satisfactory and unsatisfactory on a weekly basis.  At the end of this period the Retraining Brigade Team Commander recommended that the applicant be discharged with a misconduct discharge.
On 5 September 1978, the Retraining Brigade Unit Commander initiated discharge proceedings under Army Regulation 635-200, chapter 14, for misconduct.  The applicant was notified of his rights to have a board of officers review his case, to be represented by counsel, to submit a statement on his own behalf and to have a medical examination.  After consultation with military counsel, he waived all of these rights except to submit a statement on his own behalf.  In this statement the applicant admitted that he was wrong and asked for a second chance.  He did not raise the issue of a physical condition being a contributory cause of his misconduct.  A separate document specifically addressing the waiver of a medical examination was prepared; wherein, the applicant acknowledged his rights and continued to waive his right to the medical examination.

The discharge authority approved the discharge recommendation and directed that the applicant be discharged under Chapter 14, AR 635-200 for misconduct and be furnished an Under Other Than Honorable Discharge Certificate.  

The applicant was discharged on 15 August 1978; he had 11 months and 3 days of creditable service with 42 days of lost time.

The applicant's military medical records show two entries of complaints of a sore knee that began 6 and 7 July 1978, while playing basketball and a second injury 4 days later when he stepped in a hole.  There are no entries prior to 6 July or after 11 July 1978 for complaints or treatment for these injuries.

There is no indication that the applicant applied to the Army Discharge Review Board for review within their 15-year statutory time limit.

Army Regulation 635-40, paragraph 3-2a(5)b(1) provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

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 15 August 1978, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 August 1981.

The application is dated 26 June 2000 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

__KAK __  __AAO__  __RJW___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002066245	
SUFFIX		
RECON		
DATE BOARDED	20020702	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.31	
2.		
3.		
4.		
5.		
6.