MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002                  
	DOCKET NUMBER:   AR2002069958

	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).

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 29 October 1970, 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 he was awarded military occupational specialty (MOS) 16F20, Light Air Defense Artillery Crewman.  While still in AIT on 5 March 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful order from his superior noncommissioned officer.  Punishment consisted of forfeiture of $30.00 per month for 1 month.

Upon graduation from AIT, the applicant was assigned to duty in Germany with Battery A, 1st Battalion, 59th Artillery.  He performed duties as a Track Vehicle Driver from 29 April 1971 to 8 November 1971.

On 5 May 1971, the applicant accepted NJP for being absent from his unit from 0900-2130 hours on 4 May 1971.  Punishment included restriction for 14 days and extra duty for 14 days.

On 7 June 1971, the applicant accepted NJP for failing to go to duty, failing to obey a lawful order from a noncommissioned officer, and for being incapacitated for duty because of being intoxicated from prior indulgence of liquor.  Punishment included forfeiture of $40.00 for 1 month, 7 days' extra duty, and 7 days' restriction.  The forfeiture was suspended until 7 August 1971.

On 19 October 1971, the applicant accepted NJP for assaulting another enlisted man on 11 October 1971.  Punishment consisted of reduction to pay grade E-3. 

On 2 November 1971, the applicant was notified by his commander that he was recommending him for separation under the provisions of paragraph 6b(3), Army Regulation (AR) 635-212.  He was advised of his rights.

On 5 November 1971, after consulting with legal counsel, the applicant waived a hearing by a board of officers and declined to submit a statement in his behalf.  He further indicated he understood he could encounter prejudice in civilian life in the event he was issued a GD.
On 8 November 1971, the applicant's commander recommended that he be separated under the provisions of paragraph 6b(3), AR 635-212 for unsuitability.  Reasons cited were the applicant's apathy and misconduct.  Although no psychiatric examination was given, the applicant did receive a separation physical; however, it is not in the available records.  There is a statement on DD Form 1289 (Prescription Form), dated 4 November 1971, from the medical officer in charge of the Mainz (Germany) Health Clinic stating that a separation physical examination was done on 5 October 1971 and was still valid.

On 8 November 1971, the battalion commander recommended approval with the issuance of a GD.

On 8 November 1971, the division commander approved the discharge and directed the issuance of a GD.

On 24 November 1971, the applicant was separated with a GD.  He was credited with 1 year and 26 days of active federal service and he had no lost time.  His DD Form 214 indicates he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Badge for the M-16 rifle.

There is evidence the applicant may have tried to apply to the Army Discharge Review Board (ADRB), but the date is unknown because the reverse side of the form is missing.  He submits this as an enclosure to his current application.  A review of ADRB records failed to show that any hearing was ever conducted.

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 24 November 1971, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 November 1974.

The application is dated 18 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	AR2002069958	
SUFFIX		
RECON		
DATE BOARDED	20020815	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19711124	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A43.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4300	
2.		
3.		
4.		
5.		
6.