MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            23 May 2002                  
	DOCKET NUMBER:   AR200268835

	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. Phyllis M. Perkins		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 undesirable discharge (UD) be upgraded to honorable.  The applicant states, in effect, he was unjustly, falsely, and wrongly accused by a military sergeant, and he wants his discharge 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:

He was enlisted in the Regular Army on 31 March 1971 for a period of 3 years
at the age of 20.  Upon completion of all required military training he was awarded the military occupational specialty of radio relay and carrier attendant.  His first assignment was at Fort Bliss, Texas, from 5 November 1971 to 23 July 1972.  He was then transferred overseas to Korea where he served from
5 September 1972 to 5 July 1973.  He attained the rank of private first class, pay grade E-3, on 1 September 1971.

During the period 10 January 1972 to 1 March 1973, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice, on five occasions for various instances of misconduct, including disobeying a lawful order, sleeping on guard duty, assault of another military person and wrongfully misappropriating government property.  His punishment was reduction from private first class, pay grade E-3 to private, pay grade E-2, forfeiture of pay, restriction and extra duty.  He did not appeal the punishment.  The records do not show execution of the reduction.  He also received counseling during his service.

On 15 March 1972, he received a Summary Court-Martial conviction of wrongful possession of marijuana.  He was fined $100.00 dollars, restricted for 30 days, and reduced to private, pay grade E-2.  The sentence was adjudged on 13 March 1972 and approved on 15 March 1972.

On 15 March 1973, the applicant was recommended for discharge by his commander, under the authority of Army Regulation 635-200, prior to the expiration of his term of service based on unfitness, habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  He was advised of the recommendation and he was advised of his rights.

On 23 March 1973, the applicant requested consideration of his case by a Board of Officers.  He received military legal counsel upon making this request.  His request for a Board of Officers was approved and he was notified accordingly.

A report of mental status evaluation showed alertness, orientation, mood, thinking process, thought content and memory as normal, with behavior as hostile, and immature with no significant mental illness.  The individual was determined to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  It was also determined he had the mental capacity to understand and participate in board proceedings, and that he was not a good candidate for rehabilitation.

A Board of Officers was convened on 8 June 1973.  The applicant was present with military counsel, and participated in the proceedings.  The board found, 
“1.  Private [applicant] is undesirable for further retention in the military service because of his frequent disregard for military authority and his repeated shirking.
2.  His rehabilitation is not deemed possible.”  The board recommended that, “In view of the findings, the board recommends that Private [applicant] be discharged from the service because of unfitness with issuance of an Undesirable Discharge Certificate.” 

On 29 June 1973, his discharge was approved by appropriate authority.  Issuance of an Undesirable Discharge Certificate was directed, with reduction to private, pay grade E-1.

The applicant was discharged on 6 July 1973 under the authority of Army Regulation 635-200, chapter 13, for unfitness.  He was separated in pay grade
E-1, with 2 years, 3 months and 6 days of creditable net service for this period.  His character of service was shown as Under Conditions Other Than Honorable, and he was issued an Undesirable Discharge Certificate.

His petition to the Army Discharge Review Board (ADRB) for upgrade was denied on 3 February 1975.   

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)1 

and 4 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 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 Army Board for Correction of Military Records 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 3 February 1975, the date his petition for upgrade was denied by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired on 3 February 1978.

The application is dated 5 February 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 the 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_le_____  _kyf____  _mdm____   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068835	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.