MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2002                   
	DOCKET NUMBER:   AR2002068376

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  In effect, that his undesirable discharge (UD) be upgraded to a fully honorable discharge (HD).

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 12 March 1963, the applicant's parents signed a declaration of parental consent for him to enlist in the military.  On 13 March 1963, at age 17, he enlisted in the Regular Army for a period of 3 years under the Buddy Assignment Plan.  

On 18 March 1963, he was assigned to Fort Knox, Kentucky for completion of basic combat training (BCT) and advanced individual training (AIT).  He completed BCT and, on 4 June 1963, he began AIT for the track vehicle mechanic course.  

On 16 August 1963, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military (UCMJ), was imposed against the applicant for being absent without leave (AWOL) from 12-13 August 1963.  His punishment included forfeiture of $40.00 pay per month for 2 months.  

On 26 August 1963, the applicant left his unit in an AWOL status.  On 31 August 1963, he was arrested in Louisville, Kentucky and charged with "Interstate transportation of a vehicle in accordance with the Federal Juvenile Delinquency Act."

On 14 October 1963, the applicant pled guilty and he was convicted of the above offense in the United States District Court, Louisville.  He was sentenced to remain in the custody of the Attorney General until his twenty-first birth date.  He was confined at the National Training School, Washington, D.C.

On 6 December 1963, the applicant annotated and authenticated a USAARMC Form 327 (Enlisted Personnel Confined by Civil Authorities) to indicate that he did not intend to appeal his conviction and/or adjudication as a youth offender. 

On 10 February 1964, the applicant’s commander recommended that the applicant be separated under the provisions of Army Regulation 635-206, due to a civil conviction with a UD.  

On 14 February 1964, in light of the fact that the applicant was a juvenile offender, the brigade commander recommended that he be separated under the provisions of chapter 2, Army Regulation 635-205 with a UD.

On 4 March 1964, competent authority approved the recommendation and directed that the applicant be separated under the provisions of chapter 2, Army Regulation 635-205 with a UD.

On 13 March 1964, the applicant was separated, due to other good and sufficient reasons as determined by Headquarters, Department of the Army, with a UD.  He had completed 5 months and 21 days of creditable active military service.  He also had 193 days of lost time due to being AWOL and in civil confinement. 

There is no evidence that the applicant applied to the Army Discharge Review Board for the upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-205, then in effect, set forth the conditions under which enlisted personnel could be discharged or released from active duty for the convenience of the Government.

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.  Failure to file within 3 years may be excused by a correction board if 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 13 March 1964, the date that he received his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 March 1967.

The application is dated 14 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.

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

__rvo___  __rwa___  __jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068376	
SUFFIX		
RECON		
DATE BOARDED	20020620	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19640313	
DISCHARGE AUTHORITY	AR635-205 	
DISCHARGE REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0400	
2.		
3.		
4.		
5.		
6.