MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 June 2002
	DOCKET NUMBER:   AR2002067011

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 (GD) be upgraded to honorable.

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:

With 1 year, 3 months, and 23 days of prior service in the Army of the United States, the applicant enlisted in the Regular Army on 29 April 1975 for a period of 3 years and the United States Army (USA) Unit of Choice Enlistment Option –USA Intelligence School, Fort Huachuca, Arizona.  Following just 7 weeks of AIT, the applicant's company commander recommended him for discharge under the provisions of chapter 13-5b(3), Army Regulation 635-200, for unsuitability.  The recommendation was based upon the applicant's inability to adapt to military discipline.  The company commander also noted that the applicant had accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 24 and 25 July 1975 for being incapacitated for the proper performance of his duty and for missing Reveille due to apathy.  The applicant was advised of his rights and elected not to submit a statement in his own behalf or have his case heard by a board of officers.  

On 28 August 1975, the appropriate authority approved the applicant's discharge with a GD.  Accordingly, on 3 September 1975, the applicant was discharged after completing 4 months and 5 days of creditable military service.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 11 October 1984, denied his request.

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 11 October 1984, the date on which the ADRB denied the applicant's request for a discharge upgrade.  The time for the applicant to file a request for correction of any error or injustice expired on 11 October 1987.

The application is dated 28 December 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.

Prior to reaching this determination, the Board looked at the applicant's entire submission and noted his contentions.  It was only after all aspects of this case had been considered and it had been concluded that there was no basis to recommend a correction of record that the Board considered the statue 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 time prescribed by law.

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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__kak___  _mhm____  __alr___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067011	
SUFFIX		
RECON		
DATE BOARDED	20020618	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19750903	
DISCHARGE AUTHORITY	AR 635-200, c13-5b (3)	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.