MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 JUNE 2002
	DOCKET NUMBER:   AR2002066311

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Roger W. Able		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 records be corrected by upgrading his discharge.  The applicant states that his discharge was inequitable because he agreed to an undesirable discharge while he was mentally ill and craving heroin, that prior to his service in Vietnam he was a model soldier, that he struggles with mental issues and Type II Diabetes possibly contracted from Agent Orange while in Vietnam.  He also states that he was approved for medical benefits from the Department of Veterans Affairs, Seattle Regional Office in 1999, but received a letter from the Boise Regional Office stopping his benefits.

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 29 May 1969, the applicant enlisted in the Regular Army for a period of 
3 years.  He successfully completed basic and advanced individual training and was awarded the military occupational specialty (MOS) 51L (Refrigeration  Equipment Repairman).  He served in Germany from 2 January 1970 to 16 July 1970, and in Vietnam from 13 September 1970 to 28 June 1971.

Between 4 September 1979 and 4 November 1971, he received three nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for a total of 22 days, for failure to go to his appointed place of duty, and for operating a vehicle on base without a valid driver’s license.  His punishments included reduction, forfeiture, extra duty, and restriction.

In May 1972, the applicant was charged with being AWOL from 22 November 19971 until his apprehension by civil authorities on 25 April 1972, and from 
17 May 1972 to 19 May 1972.  

On 15 May 1972, the applicant was medically cleared for separation.

On 15 June 1972, a Neuropsychiatric Report determined that the applicant  was mentally responsible, able to distinguish right from wrong and to adhere to the right, that he had a poor military attitude, and had no interest in remaining in the Army.  He was very immature and unwilling to assume responsibility, and had no positive assets for life in the military.

On 21 June 1972, the applicant requested a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged that he had been advised of his rights and that he understood the ramifications of receiving a less than honorable discharge, including the fact that he could be denied some or all veterans’ benefits as a result of his discharge.

On 3 August 1972, the appropriate separation authority approved the applicant’s discharge under the above cited regulation and directed the issuance of an undesirable discharge certificate and his reduction to pay grade E-1.

On 24 August 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 
2 years, 8 months and 28 days of creditable service and 180 days of lost time.

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.

The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

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 24 August 1972, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1975.

The application is dated 26 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

__RVO__  __RWA__  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002066311	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020620	
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.