MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002                   
	DOCKET NUMBER:   AR2002069732

	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:  In effect, an upgrade of his discharge.

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 2 December 1969, 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) 71H20, Personnel Specialist.

While still in BCT on 27 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, for failing to be at his appointed place of duty on 26 January 1970.  Punishment included forfeiture of $17.00 pay per month for 1 month, 7 days of extra duty, and 7 days of restriction.

While still in AIT on 26 February 1970, the applicant accepted NJP for failing to be at his appointed place of duty on 21 February 1970.  Punishment included forfeiture of $17.00 pay per month for 1 month and to be confined in correctional custody for a period of 7 days.

Also while still in AIT on 15 April 1970, the applicant was convicted by Summary Court Martial for being absent without leave (AWOL) from 6 April 1970 through 9 April 1970.  Punishment included forfeiture of $40.00 pay per month for 1 month and to be confined at hard labor for 7 days.

On 8 June 1970, the applicant was assigned to Garrison Company, U.S. Army Garrison, Fort McPherson, Georgia, upon graduation from AIT with a duty assignment of Personnel Specialist.  On 18 July 1970, the applicant left his unit in an AWOL status until 26 October 1970.

On 7 January 1971, the applicant again left his unit in an AWOL status until 11 April 1971.  He was arrested by civil authorities on 12 April 1971 for possession of narcotics.  He was released to military authorities on 18 June 1971.

On 15 July 1971, the applicant again left his unit in an AWOL status.  On 20 March 1972, the record indicates he was being held by civil authorities and further reveals he was convicted by civil authorities on 20 November 1972 for armed robbery.  He was sentenced to 10 years' confinement.

On 24 September 1974, the applicant waived consideration of his pending discharge under the provisions of Army Regulation (AR) 635-206 for civil conviction by a board of officers.  In addition, he waived his right to counsel, declined to submit a statement in his behalf, and further indicated that he did not intend to appeal his civil conviction.

On 17 December 1974, the applicant was separated with an Undesirable Discharge (UD).  He was credited with 1 year, 7 months, and 1 day of active Federal service and had 782 days of lost time.  His DD Form 214 shows he was awarded the National Defense Service Medal.

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

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Section III of the regulation provided, in pertinent part, that members convicted by a civil court were subject to separation. An undesirable discharge was 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.  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 17 December 1974, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 17 December 1977.

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 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	AR2002069732	
SUFFIX		
RECON		
DATE BOARDED	20020815	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19741217	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.