MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 July 2002                  
	DOCKET NUMBER:   AR2002067655

	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. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		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:  That his undesirable discharge be upgraded.  He states that he is not seeking any benefits, only peace of mind.  He offers no date of discovery or reason for the Board to excuse his failure to timely file.  

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 23 November 1970.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  Subsequently, he completed basic parachutist training.  Throughout his training, his conduct and efficiency were reported as excellent.  

He was assigned to Company B, 1st Battalion (Airborne), 508th Infantry Regiment, Fort Bragg, North Carolina.  

On 22 May 1972, the applicant was reported absent without leave (AWOL).  He voluntarily returned to military control at Fort Ord, California on 4 October 1972.  

On 4 October 1972, charges were preferred for that AWOL offense.  The applicant acknowledged his rights and that the offense committed could result in a bad conduct discharge.

On 6 October 1972, after conferring with legal counsel, he submitted a request for a discharge for the good of the service in lieu of trial by court-martial.  In the statement submitted at that time, the applicant explained that he had gone AWOL because an early out was revoked and because if he was not released, he would lose a lot of money in a business that he had started.  He stated that the only way for him not to lose a lot of money or the business entirely was to be released as soon as possible. 

His chain of command reviewed the evidence and recommended that he be separated from active duty for the good of the service under other than honorable conditions.  The discharge authority concurred with the recommendation and directed that the applicant be reduced to the lowest enlisted grade (E-1), separated under the provisions of Army Regulation 635-200, chapter 10 and given an undesirable discharge certificate.

The applicant was discharged on 23 November 1972, under other than honorable conditions.  His records show that he is credited with 1 year, 9 months and 14 days of service with 135 days lost.  
The applicant's DD Form 214 ( Report of Transfer or Discharge) shows that he was awarded the National Defense Service Medal and the Marksman Qualification Badge with Rifle Bar.

The applicant's file was reviewed under the Special Discharge Review Program (SDRP) on 17 October 1977.   It was determined that his circumstances did not meet the requirements for an automatic upgrade; therefore, he was denied any change of the characterization of his service or the reason for discharge.

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.

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 17 October 1977, the date of the SDRP review. The time for the applicant to file a request for correction of any error or injustice expired on 17 October 1980.

The application is dated 8 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.

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

__TSK___  ___JTM_  ___HBO_  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067655	
SUFFIX		
RECON		
DATE BOARDED	20020711	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.7	
2.		
3.		
4.		
5.		
6.