MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           30 May 2002                  
	DOCKET NUMBER:   AR2002066318

	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:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 opinions, if any).

APPLICANT REQUESTS:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.  He states that his Article 15 (nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice) was for a petty incident imposed by a racist first sergeant just to get him out of the service.

The applicant does not indicate a date of discovery of the alleged error or injustice.  However, he states that it would be in the interest of justice for the Board to consider this application since he is in a drug rehabilitation program and going to a trade school to get his life together and would like to have "this blemish" on his record removed.

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 8 October 1976.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 75B (Unit Clerk).  He served in this specialty with two units at Fort Wainwright, Alaska.

The applicant received NJP on four occasions: 28 November 1977 for three counts of failure to go to his appointed place of duty (FTG); 13 February 1978 for disobeying a direct order and two counts of FTG; 20 April 1978 for not carrying an I.D. card, improper wearing of his uniform and four counts of FTG; and 16 May 1978 for FTG (failure to attend his previously imposed extra duty). 

On 26 May 1978, the applicant's company commander notified him, in writing, of his intent to discharge him for misconduct.  He was advised of his rights and elected to have his case reviewed by a board of officers.  

A mental status evaluation was conducted that found the applicant's behavior normal.  He was found to be able to tell right from wrong and to adhere to the right.  He was afforded a separation physical and was shown to meet the medical retention standards of Army Regulation 40-501 and was qualified for separation.  

The applicant appeared in person, with counsel, before the board of officers on 25 August 1978.  This Board rendered a unanimous decision that the applicant should be discharged UOTHC.  The discharge authority approved the discharge on 24 October 1978.

The applicant was discharged on 6 November 1978, with an UOTHC characterization of service for misconduct - frequent incidents of discreditable nature with authorities in accordance with Army Regulation 635-200, chapter 14. He was shown to have had 2 years and 29 days of creditable service.

The Army Discharge Review Board reviewed the applicant's request for an upgrade of his discharge and by unanimous decision denied the applicant any relief on 14 January 1983.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, frequent incidents of a discreditable nature with civil or military authorities, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  

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 14 January 1983, the date of ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 14 January 1986.

The application is dated 29 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__  ___JPI __  __PM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002066318	
SUFFIX		
RECON		
DATE BOARDED	20020630	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	142.0001	
2.	126.00	
3.	144.6750  	
4.		
5.		
6.