MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002                   
	DOCKET NUMBER:   AR2002069723

	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 General Discharge (GD) be upgraded to an Honorable Discharge (HD) and that the reason for separation be changed to hardship.  He adds that he needed to take care of his family and that it was untrue that he could not adjust to military life.

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 13 September 1976, the applicant enlisted in the Regular Army for a period of 3 years.  He successfully completed Basic Combat Training (BCT) and Advanced Individual Training (AIT) and was awarded military occupational specialty (MOS) 11E10, Armor Crewman.  On 2 December 1976, while still in AIT, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful order to report to Kitchen Police (KP) duty on 30 November 1976.  Punishment included forfeiture of $50.00 for 1 month and extra duty for 7 days.

Upon graduation from AIT, the applicant was transferred to Germany and assigned to duty with Company A, 1st Battalion, 64th Armor.  On 25 February 1977, he was reassigned to Company B and, on 1 March 1978, his MOS was changed to 19E10, Armor Crewman and he performed duty as a Loader.

On 15 April 1977, the applicant accepted NJP for failing to report to his appointed place of duty on 5 April 1977.  Punishment included reduction to pay grade E-1 (suspended for 3 months), forfeiture of $50.00 for 1 month, restriction for 7 days, and 14 days of extra duty.

On 16 April 1978, the applicant accepted NJP for being disrespectful to his superior noncommissioned officer on 24 March 1978.  Punishment included reduction to pay grade E-1 (suspended for 90 days) forfeiture of $103.00 (to be collected on or after 1 May 1978), and restriction and extra duty for 14 days.

On 18 August 1978, the applicant completed a separation physical and was found qualified for separation.  On 6 September 1978, he was notified by his commander that discharge action was being initiated to separate him under the provisions of paragraph 5-37 (sic), Army Regulation (AR) 635-200, the 

Expeditious Discharge Program.  The reasons cited were his poor attitude, lack of self-discipline, failure to demonstrate promotion potential, hostility toward the Army, inability to accept instructions and directions, clearly substandard performance, and his lack of cooperation with peers and superiors.  A GD was recommended.  

On 6 September 1978, the applicant, by return endorsement, acknowledged the notification and indicated he consented to the discharge and declined to submit a statement in his behalf.

On 6 September 1978, the commander forwarded the action to the battalion commander recommending discharge with issuance of a GD.

On 7 September 1978, the battalion commander approved the action and directed separation with a GD.

On 25 September 1978, the applicant was separated with a GD.  He was credited with 2 years and 13 days of active Federal service and he had no lost time.  His DD Form 214 shows he had 4 days of excess leave and his only award was the Expert Marksmanship Badge (.45 caliber pistol).

On or about 18 January 2002, the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge.  He was advised by the Army Review Boards Agency Support Division, St. Louis, that he was ineligible for consideration by the ADRB because he was past the 15-year statute of limitations for that board.  He was provided an application to this Board.

Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), then in effect, provided the authority for separation of enlisted personnel.  It stated, in pertinent part, that soldiers who demonstrated that they could not, or would not meet acceptable standards required of enlisted personnel could be released from active duty.  The policy applied to soldiers who completed at least 6 months, but not more than 36 months of continuous active duty on their first enlistment.

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 25 September 1978, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 September 1981.

The application is dated 13 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 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

__jns___  __inw___  __jam___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002069723	
SUFFIX		
RECON		
DATE BOARDED	20020815	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19780925	
DISCHARGE AUTHORITY	AR 635-200, Chapter 5	
DISCHARGE REASON	A24.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.2400	
2.		
3.		
4.		
5.		
6.