MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002                   
	DOCKET NUMBER:   AR2002068224

	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. Paul Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 discharge be changed to General or Honorable.  He indicates that he "went to Chicago in '86" about this matter, but he never got an answer to his upgrade 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 11 June 1980, he enlisted in the Regular Army for a period of 4 years and later extended an additional 8 months to qualify for movement of his dependents for a tour of duty in Germany.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 13B10, Cannon Crewman.

Upon graduation from advanced individual training, the applicant was assigned to duty at Howitzer Battery, 1st Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, Texas, as a Cannon Crewman.

On 20 July 1981, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to go to duty on 7 July 1981.  Punishment included 14 days of extra duty and forfeiture of $100.00 pay.

On 25 August 1981, he accepted NJP for being found in a privately owned vehicle while being posted as a sentinel of the motor pool.  Punishment included 14 days of extra duty, forfeiture of $116.00, and reduction to pay grade E-1 (suspended for 90 days).

On/about 28 December 1981, the applicant was transferred to assignment in Germany.  He obtained an 8-month enlistment extension to qualify for the movement of his dependents to this assignment.  In Germany, he performed duty as a Cannoneer and an Ammo Handler while being assigned to the C Battery, 1st Battalion, 18th Field Artillery Brigade.  He was later assigned to A Battery, 1st Battalion, 18th Field Artillery Brigade.

On an unknown date, court-martial charges were preferred against the applicant for possession and distribution of marijuana.  The charge sheet is missing from the record.

On 20 March 1984, the applicant requested discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 after consulting with counsel.  He declined to submit a statement in his own behalf.

The applicant's company, battalion, and brigade commanders all recommended approval of the request with the issuance of an Under Other Than Honorable Conditions (UOTHC) Discharge.

On 4 April 1984, the General Court-Martial Convening Authority approved the discharge and directed the issuance of a UOTHC Discharge and immediate reduction to pay grade E-1.

On 17 April 1984, the applicant was separated with a UOTHC Discharge.  He was credited with 3 years, 10 months, and 3 days of active federal service, and he had 5 days of lost time.  His DD Form 214 shows that he was awarded the Good Conduct Medal and the Army Service Ribbon.

On 21 July 1987, the applicant and counsel appeared before the Army Discharge Review Board (ADRB) panel in Chicago, Illinois.  The ADRB denied his request for an upgrade.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, 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 21 July 1987, the date the ADRB denied his appeal.  The time for the applicant to file a request for correction of any error or injustice expired on 21 July 1990.

The application is dated 23 January 2002 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.  In addition, the Board rejects his issue he has waited this long to apply because he never heard from the ADRB.  There is no evidence that the notification to him was returned as being undeliverable and he had ample opportunity during the interim time frame to inquire to the ADRB what the decision was, if he did not receive a copy.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__jns___  __inw___  __jam___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068224	
SUFFIX		
RECON		
DATE BOARDED	20020815	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19840417	
DISCHARGE AUTHORITY	AR 635-200, Chap 10	
DISCHARGE REASON	A53.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5300	
2.		
3.		
4.		
5.		
6.