MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 APRIL 2002
	DOCKET NUMBER:   AR2002067770

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.  The applicant states, in effect, that he was subjected to racism within his company, that he was made to do things that others never had to do, that he was degraded, transferred and had his rank taken away from him.  The applicant submits no evidence in support of his request.

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 28 May 1976, the applicant reenlisted in the Regular Army for a period of 
3 years.

Between 4 May 1977 and 1 September 1977, the applicant received 
3 nonjudicidual punishments under the provisions of Article 15, Uniform Code of Military Justice for being absent from his unit, failure to go to his appointed place of duty, 4 specifications (21,25,26 and 29 July 1977), and 29 August 1977.  His punishments included restriction, extra duty, forfeiture, and reduction to pay grade E-2. 

On 2 November 1977 a Mental Status Report and a Physical Examination cleared the applicant for separation.

On 3 November 1977, his company commander preferred court-martial charges against him for being absent without leave (AWOL) from 15 August 1977 to
30 October 1977.  

On 4 November 1977, the applicant, after consulting with legal counsel, requested a discharge for the good of the service, under the provisions of Army regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged that he was guilty of the charges against him.  Included with his request were statements that he had consulted with counsel, and had been fully advised of his rights and the possible effects of an under other than honorable conditions discharge.

On 17 November 1977, the appropriate separation authority approved the applicant’s request and directed that he be reduced to pay grade E-1, and issued an other than honorable conditions discharge.

On 29 November 1977, the applicant was separated with an UOTHC discharge, under the above cited regulation, for the good of the service, in lieu of trial by court-martial.  The applicant’s DD Form 214, indicates he went on excess leave from 4 November through 29 November 1977, and shows 102 days of lost time.  His service information was blank with a notation that it had not been verified. 

On 4 November 1982, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his 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.

There is no evidence in the available records, nor did the applicant provide documentation to support his claim that he had been a victim of racism or that his rank was taken away for no reason.   

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 4 November 1982, the date the ADRB denied his request.  The time for the applicant to file a request for correction of any error or injustice expired on 4 November 1985.

The application is dated 8 December 1998 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

__FNE __  __BJE  __  __REB __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067770	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020418	
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.