MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 FEBRUARY 2002                   
	DOCKET NUMBER:   AR2002066310

	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. Deborah L. Brantley		Senior 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 general discharge be upgraded to honorable. He states that he was young and did not understand the impact his general discharge would have on his life.  He submits no evidence in support of his request, but does note that he served his "country for the length of time [he] did."

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 entered active duty on 29 July 1981 at the age of 19, with 12 years of formal education.  He successfully completed training and in November 1981 was assigned to Fort Ord, California.

Between January and June 1982 he was punished three times under Article 15 of the UCMJ (Uniform Code of Military Justice), once for sleeping while on duty, and twice for failing to go to his appointed place of duty.

On 11 June 1982 his unit commander initiated action to administratively separate the applicant from active duty under the Army's Expeditious Discharge Program.  His commander cited the applicant's extremely poor attitude, failure to repair, apathy, and other misconduct, as the basis for his recommendation.

The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  The applicant also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if his service was characterized as under honorable conditions.

The unit commander's recommendation was approved and on 18 June 1982 the applicant was discharged under honorable conditions in pay grade E-1.  He had less than 12 months of active Federal service at the time of his separation.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or 

failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.

In 1983 the Army Discharge Review Board denied the applicant's petition to upgrade 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.

There is no evidence, and the applicant has not submitted any, which would serve as a basis to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 1983, the year the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired in 1986.

The application is dated 18 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 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	AR2002066310	
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.